In re Marriage of Cervenka, 2022 IL App (2d) 210268-U

1) Case citation and parties
- In re Marriage of Cervenka, No. 2-21-0268 (Ill. App. Ct., 2d Dist., May 20, 2022) (Rule 23(b) order).
- Petitioner-Appellee: Lisa Cervenka. Respondent-Appellant: Thomas Cervenka.

2) Key legal issues
- Whether a post‑dissolution, handwritten agreement (Sept. 28, 2018) modifying maintenance to continue “despite the cohabitation w/ Jason Seiden,” signed/initialed by Thomas, validly modified the parties’ Marital Settlement Agreement (MSA) incorporated into the dissolution judgment.
- Whether that agreement was supported by consideration or barred by the “pre‑existing duty” rule, and whether estoppel barred Thomas from terminating maintenance under the MSA’s cohabitation termination provision.
- Interaction with 750 ILCS 5/502(b) (court’s role in reviewing marital agreements incorporated into judgment).

3) Holding / Outcome
- Affirmed. The trial court did not err in denying Thomas’s petition to terminate maintenance. The appellate court held the Sept. 28, 2018 document was a valid modification supported by consideration, and Thomas was estopped from terminating maintenance on cohabitation grounds.

4) Significant legal reasoning (summary)
- The MSA (Nov. 7, 2016) was incorporated into the dissolution judgment and included a cohabitation clause terminating maintenance. Thomas initially prepared the Sept. 28, 2018 writing; Lisa added “despite the cohabitation w/ Jason Seiden”; Thomas initialed/signed. Contemporaneously, Thomas (as landlord) and Jason entered a lease (Oct. 1, 2018) in which Jason paid $1,500/month and took on upkeep of the marital home where Lisa and the children remained.
- The trial court found—and the appellate court accepted—that the parties’ conduct and the rent/occupancy arrangement supplied consideration for the modification (not merely a pre‑existing duty), and that Lisa reasonably relied on the modification (she curtailed employment and relied on maintenance). Under these facts, estoppel barred Thomas from invoking the cohabitation termination.
- The appellate decision acknowledges 750 ILCS 5/502(b) but enforces the private modification where supported by consideration and corroborated by contemporaneous acts.

5) Practice implications (concise)
- Post‑judgment modifications to maintenance can be enforceable without a formal court order if there is a clear, signed agreement plus consideration and corroborating conduct—especially where the nonmoving party detrimentally relies.
- Best practice: obtain an express written modification and enter a court order to avoid dispute; clearly document consideration (payments, lease, relinquished rights) and contemporaneous acts.
- Counsel should anticipate estoppel arguments where a payor treats a cohabitation situation permissively and the payee relies.
- Note: this is a Rule 23(b) non‑precedential order—persuasive but limited.