IICLE Family Law Flash Points - July 2023

Petition To Terminate Maintenance Based on Cohabitation Denied in “Close Call” Decision

In a postjudgment action, the husband, who was ordered to pay maintenance for 20 years, filed a petition to terminate maintenance on the basis that the wife was cohabitating with her boyfriend. In re Marriage of Edson, 2023 IL App (1st) 230236. After a lengthy evidentiary hearing involving several witnesses, the trial court denied the husband’s petition as a “close call.” 2023 IL App (1st) 230236 at ¶165. The trial court found that the husband had established that the wife was in an intimate dating relationship but had failed to establish by a preponderance of the evidence that she was in a de facto marriage. The husband appealed, and the appellate court affirmed. In a lengthy opinion that relied heavily on the facts of the case, the appellate court noted that In re Marriage of Herrin, 262 Ill.App.3d 573, 634 N.E.2d 1168, 199 Ill.Dec. 814 (4th Dist. 1994), has been cited throughout Illinois for its non-exhaustive list of factors that the appellate courts have used to determine whether a party is in a de facto marriage. The court cautioned that the Illinois Supreme Court has not adopted the Herrin factors as the appropriate factors to consider and that this list was never intended to be the only set of factors used in an analysis. The appellate court engaged in a lengthy analysis of the Herrin factors but noted that the denial of the husband’s petition rested on the fact that based on the totality of the circumstances, the relationship was an intimate dating relationship only. The relationship lacked certain practical and economic characteristics such as commingled finances and a singular mutual household. The wife’s boyfriend had maintained a rental home for approximately ten years, one that he had well before the dating relationship began. The wife continued to maintain her own household and was responsible for paying all of the bills associated with that household. The couple did not share any bank accounts or credit cards, and their life insurance policies listed their respective children as beneficiaries, not each other. While the couple had a long-term dating relationship in which they traveled together and spent holidays together and were often around each other’s children, they were not contemplating marriage, did not have a joint residence, and did not commingle finances.

Trial Court Properly Granted Wife’s Motion To Dismiss Husband’s Petition To Invalidate Marriage

In In re Marriage of Andrew, 2023 IL App (1st) 221039, the parties were divorced after 20 years of marriage and the husband was ordered to pay to the wife maintenance at $20,000 per month by the parties’ marital settlement agreement (MSA). Six years after the entry of judgment, the wife brought a petition for rule to show cause when the husband stopped making the required maintenance payments to her. The husband filed a petition to invalidate the marriage, alleging that his relationship with his former wife began when he was 16 years old; that the wife was a high school teacher and advisor of his; and that she used her position to “take dominance and control” over him to sexually assault him on an almost weekly basis when he was a minor. 2023 IL App (1st) 221039 at ¶6. He further alleged that when he turned 25 the parties married at her insistence and that due to her dominance and control over him, the marriage should be invalidated. In his request for relief, the husband demanded the wife disgorge any and all monies and property she received from him under the MSA. The wife filed a motion to dismiss the husband’s petition, which the court granted. The husband filed an amended petition, which the trial court also dismissed. Thereafter, the court denied a motion to reconsider filed by the husband. The husband then filed a motion to terminate maintenance alleging that he had a therapeutic breakthrough in 2020, which was a substantial change in circumstances. The appellate court affirmed the dismissal of the husband’s petition to invalidate the marriage. The facts contained in the judgment directly contradicted his petition, namely, that he was under the wife’s “dominance and control.” 2023 IL App (1st) 221039 at ¶40. He was a successful professional who filed a petition for divorce, participated in negotiations while represented by counsel, and entered into an MSA that provided he was acting of his own free will and without duress. He also did not plead any facts that showed specifically how the wife’s “dominance and control” could have persisted beyond the entry of judgment. 2023 IL App (1st) 221039 at ¶42. He made no allegations of a mental health diagnosis, repressed memories, or even how such dominance and control manifested itself in his life. The court noted that this opinion does not answer the question whether a verified history of sexual misconduct or grooming might be a sufficient reason to invalidate a marriage under §301 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., under a different set of circumstances.