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How Cohabitation Can Affect Spousal MaintenanceSpousal maintenance payments established in a divorce agreement are terminated if the recipient party remarries. There is no argument that the remarried party has a new source of income and no longer needs their former spouse to pay for their living expenses. A court may also terminate maintenance if the recipient is in a de facto marriage, meaning that the couple is not legally married but behaves as if they are. The spousal maintenance payor is responsible for proving that a de facto marriage exists and that maintenance payments are no longer appropriate.

Proving a De Facto Marriage

There is a difference between an intimate relationship and a de facto marriage. Illinois courts look for several signs that a relationship is behaving like a marriage, such as a couple:

  • Living together;
  • Having a long-standing relationship;
  • Sharing financial accounts and expenses;
  • Spending holidays and vacations together; and
  • Acting like co-parents to the children.

A court will need proof of several factors in order to conclude that a de facto marriage exists. Cohabitation is important evidence but may not be enough on its own.

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When Can Spousal Maintenance Be Modified?Absent any language stating otherwise, the terms of a spousal maintenance agreement are modifiable when either party has a significant change of circumstances. Examples include a change in:

  • Employment status;
  • Income;
  • Marital status;
  • Tax implications of the agreement; or
  • The value of properties awarded after divorce.

An Illinois court will award modifiable spousal maintenance if the spouses cannot agree to terms during the divorce negotiations. However, divorcing couples can present other forms of maintenance agreements that have different conditions for when the agreement may be modified.

Reviewable Maintenance

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Change of Circumstances Allows Immediate Modification to Parenting TimeWhen former spouses determine parenting time during a divorce, they are creating a schedule that works best at that moment. The needs of children and parents change as they get older. So, it is natural that a parenting time schedule will need to change at some point. A court must approve any modifications to a written parenting time agreement for them to be legal. The difficulty of the process may depend on: 

  • How significant the changes are;
  • How much time has passed since the agreement was created; and
  • Whether both parents agree to the changes.

New Laws

If your parenting time agreement was approved before 2016, you may hear unfamiliar terms when you return to court to modify it. For instance, your parenting time schedule may have been called a visitation schedule. Illinois enacted new divorce laws in 2016, and the new terms reflect a change in philosophy for creating parenting agreements. Parents are allocated responsibilities instead of being granted custody, and parenting time is one of the primary responsibilities. The language in your visitation agreement may be out-of-date, but the agreement can still conform to the law. As long as the court is satisfied that the agreement is in the child’s best interest, you may be able to preserve the parts that you do not want to change.

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