Cohabitation Does Not Entitle Couple to Share of Property

 Posted on August 29, 2017 in Cohabitation

Cohabitation Does Not Entitle Couple to Share of PropertySociety has become more accepting of couples who cohabitate without marriage, but laws do not yet treat them equally. Some states, including Illinois, prohibit common law marriages, in which couples act and present themselves as married but never obtain a legal union. While this may limit a couple’s rights when they are together, it also affects them when their relationship ends. Illinois laws state that couples who dissolve their marriages or civil unions are entitled to an equitable division of their shared properties. Because Illinois does not recognize common law marriages, cohabitating couples do not have the same property rights unless they created their own separation agreement.

Legal Precedent

Illinois’ Supreme Court has twice decided that cohabitating couples are not required to equitably divide their properties after their relationships end:

  • A 1979 decision on the case of Hewitt v. Hewitt said that a person in an unmarried relationship does not have a legal claim to an equal share of his or her former partner's property. An appeals court later stated that it believed the decision was made to discourage cohabitation and children being born to unmarried couples.
  • In 2016, the high-profile case of Blumenthal v. Brewer challenged the validity of the 1979 decision. The court agreed that societal standards have changed, but a majority stated that cohabitating couples are not entitled to the rights expressed in Illinois’ Marriage and Dissolution Act. Marriage and civil unions are institutions that all couples are allowed to participate in. By not marrying, couples are forgoing the rights that are afforded to the other couples who do marry, the court stated.

Cohabitation Agreements

Blumenthal v. Brewer involved a lesbian couple who were together for more than 25 years and had three children. Neither of those factors helped when one of the women tried to obtain an equal share of her former partner’s property. However, a cohabitation agreement can function similarly to Illinois’ divorce property laws. In the agreement, the couple can decide how they will divide:

  • Real property;
  • Business ownership and interests;
  • Retirement and benefits plans; and
  • Other valuable assets.

A cohabitation agreement cannot include conditions that violate Illinois’ laws on child support payments and the allocation of parental responsibilities.

Creating Your Agreement

Cohabitation was once most commonly thought of as an option for same-sex couples who could not marry. Now, it is a lifestyle choice that some couples prefer for personal reasons. These relationships can dissolve just as marriages do, which may leave you financially vulnerable. A Kane County family law attorney at Goostree Law Group can help you create an equitable cohabitation agreement to protect yourself in case your relationship ends. Schedule a free consultation by calling 630-584-4800.



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