By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:;

Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
180 N. LaSalle St. Suite 3700 Chicago, Illinois
Telephone: (312) 741-1092;

Termination of maintenance due to cohabitation affirmed. The Third District upheld the trial court’s termination of maintenance payable from husband to wife due to wife’s cohabitation. Wife appealed arguing that she was not in a resident, continuing conjugal relationship. Wife alleged that the man was nothing more than the father of a friend and a landlord from whom she was renting space. The contrary evidence, which the Appellate Court noted fulfilled four of the six cohabitation factors under Snow v. Snow, 322 Ill.App.3d 953 (2001), included moving into the man’s mobile home and having her son move in with them and using the man’s address on her son’s parole documents; the purchase of a new car by the man for her after her son totaled hers; and the intermingling of their finances. Wife put the man’s name on her bank account and disbursed a cashier’s check from that account for the purchase of a home in only the man’s name. She moved into said home before he did, and paid for utilities, maintenance, and repairs. She also posted on her Facebook page that she had taken her “granddaughters” (his granddaughters) to the ballet. Her argument that she was merely living with him and not in a de facto marriage was not credible and the trial court’s ruling was not against the manifest weight of the evidence. In re Marriage of Aspan, 2021 IL App (3d) 190144.

Finding of substantial change of circumstances upheld on petition for modification of maintenance payments. Husband filed a petition to modify his $18,500 per month maintenance payments which he was ordered to pay wife in the judgment for dissolution of marriage. The basis for the modification was that his income dropped from $811,000 at the time of judgment to $688,000. The trial court ruled that a substantial change of circumstances had occurred, and wife appealed arguing that husband’s evidence was self-serving and speculative, and that he remained able to satisfy his obligation despite any decrease in income. The Appellate Court affirmed the trial court. The main issue was the calculation of husband’s income. His company had been bought, and while his prior income was 100% commission-based, his new compensation structure included a base salary of $250,000, quarterly bonuses tied to company performance, and an annual bonus which was tied to individual sales performance. The evidence showed that his compensation in the second half of the year when the new compensation structure took effect was much less than the first half under the old structure, and that his projected income for the next two years could fall to $370,000. The Court, however, did reverse in part on another point and remand. See #3 below. In re Marriage of Osseck, 2021 IL App (2d) 200268.

Trial court reversed for failure to adequately consider statutory factors when setting maintenance. In a post-judgment maintenance modification case, the trial court was upheld in finding that husband’s decrease in income was a substantial change of circumstances but reversed on the calculation of the new payment. When calculating the new amount, the trial court used 27.4% of husband’s base salary as a monthly payment and ordered husband to pay an additional 27.4% of any bonuses. The 27.4% was what was requested by husband because it was the percentage of his gross applied in the original judgment. The court also ordered it would revisit the payments in July of 2021, which would have been two years into husband’s new compensation structure at his company, and called its order a “temporary” order. The Appellate Court reversed. The trial court was required to consider the factors in Section 510(a-5) and 504(a) of the IMDMA which the record did not show that the court had considered when setting the new maintenance award. Upon a substantial change of circumstances, the court must determine whether and on what terms a modification is warranted based on the statutory factors. It was error when the court limited evidence and argument only to husband’s decrease in income. The Court noted that this would have been an acceptable approach if the court then opened the evidence to consider the statutory factors following a determination that a substantial change of circumstances existed. The Court also stated that the better approach in addressing fluctuating income is a bifurcated approach which is a guaranteed dollar amount plus a percentage of income above the base. In re Marriage of Osseck, 2021 IL App (2d) 200268.