Why Does Maintenance Terminate Upon Remarriage?
Matthew A. Kirsh, ISBA Family Law Newsletter, November 2017
Death. Re-Marriage. Cohabitation. These words are burned into every family law practitioner’s mind. They are the triumvirate of termination. If your client is paying maintenance to a former spouse and he/she gets remarried, the obligation to pay terminates upon death, remarriage, or cohabitation. We all know it, but have we ever questioned it? During a recent dinner table conversation, my wife questioned why maintenance terminates upon remarriage. I really did not have a great answer.
Termination upon death is quite logical. Dead men neither tell tales nor pay maintenance.
The second automatic terminating factor is remarriage. An Illinois court’s remarriage inquiry begins and ends with the wedding ceremony. No inquiry into the effect the remarriage will have on the maintenance recipient’s financial circumstances is necessary. Why not? While I am not advocating a radical change in the law, I am in encouraging a discussion about the perhaps antiquated notion that maintenance should automatically terminate upon remarriage.
1977 was a long time ago. When the Illinois Marriage and Dissolution of Marriage Act was first enacted, society’s notions of the roles of men and women was much different. Likewise, society’s view of women in the workplace was much different. The automatic termination of maintenance upon remarriage seems to be rooted, in substantial part, in the notion that once a women finds herself a man to support her, she is no longer a potential drain on society and, therefore, her former husband’s obligation to support her terminates. The idea that a husband is the only thing keeping millions of women off the welfare rolls is completely out of touch with present reality.
Consider the case of a college educated, stay at home mother who foregoes her professional ambition to raise children and support her husband’s career. She has never earned more than $30,000.00 in any given year, and that was before the birth of her first child. The children are grown and, as often happens, a divorce follows. During the intervening years, the women’s husband has had a successful career and is now earning hundreds of thousands of dollars per year. The husband’s ability to rise through the ranks was boosted greatly by the fact that the domestic side of his life was taken care of by his wife. When he needed a charming companion at a business function, she was there. In short, the husband and wife acted as a partnership and there is no reason why the wife should not share in the success she helped build.
Assuming the married couple, in the preceding paragraph, has been married for more than twenty years, the current law would support a substantial long-term/permanent maintenance award. Not many would argue the appropriateness of such an award based upon each party’s contribution to the family partnership. The success that both the parents and the children are enjoying is due to the work of both the husband and the wife. The current law embraces the notion that the wife “earned” her right to receive periodic maintenance. Her contributions to the marriage were such that society would view it as unfair if divorce were to terminate her entitlement to the financial success being enjoyed by her husband which she helped build.
If the wife, now a former wife, is in need of the maintenance paid from the income she sacrificed to help accumulate, why should her right to receive maintenance terminate merely because she remarries?
If a party receiving maintenance cohabits with another person on a resident, continuing conjugal basis, his/her right to receive maintenance terminates. However, a review of the case law on cohabitation demonstrates that the courts are required to look beyond the mere fact that the maintenance recipient may be residing with another individual. The cases require the courts to examine the financial impact of the cohabitation, the financial entanglement of the cohabitating couple, and the effect of the cohabitation on the maintenance recipient’s need for continued maintenance. Why should the subsequent remarriage of a maintenance recipient be treated any differently?
I can almost hear some of you saying “But the courts only consider those other factors to determine if the couple is engaged in a de facto marriage.” I would agree with you. However, I would also ask whether the de facto marriage question is the wrong question to ask in 2017.
750 ILCS 5/510 (a-5) lists nine factors the court should consider when deciding a modification or termination of maintenance case. Most of the factors direct the court to look at the financial equity and fairness of the requested modification. The factors are designed to do justice between the parties and achieve a result that is financially equitable. Currently remarriage results in an automatic termination of maintenance when, perhaps, it should merely trigger an automatic review using the (a-5) factors.
Clearly, a former husband or wife should never be required to pay maintenance to financially support a new spouse. Perhaps remarriage should forever bar a former spouse from seeking an increase in maintenance. However, if a maintenance receiving husband falls in love with a poet, why should the fact that he is receiving maintenance prevent him from achieving the happiness marriage will bring? If society values and encourages marriage, doesn’t the current law discourage marriage?
The Illinois Marriage and Dissolution of Marriage Act is 40 years old. The world has changed. Societal norms have changed. Perhaps, in light of all this change, it is time to examine whether a change to the maintenance termination law is also appropriate.