In the state of Illinois, the only way to get legally married is by obtaining a marriage license and having a legal ceremony before a duly appointed officiant. However, other states still allow for the practice of common-law marriage, and if a couple moves to Illinois after being married under common law in another state, Illinois will recognize that marriage as legal. Regardless of how a couple was legally married, the only way to end a marriage in Illinois is through the legal process of divorce, and this can raise some unique complications for couples with common-law marriages.

Illinois and Common-Law Marriage

Generally, a common-law marriage is a situation in which the couple holds themselves to be married in public, has lived together for a substantial amount of time, and has acted in ways typical of a legally married couple, such as owning property together, filing taxes jointly, or taking the partner’s last name. This list of states that still allow such marriages is small, but in those states, a couple that becomes married under common law has the same benefits and responsibilities as a couple who was formally married in a legal ceremony. These benefits and responsibilities can be upheld even when the couple moves to a state such as Illinois that does not allow common-law marriage.

Divorce After a Common-Law Marriage

While some states have common-law marriages, there is no such thing as a common-law divorce in any state. This means that a divorce must take place through the court system. If you met all the requirements for a common-law marriage in another state and then moved to Illinois, you would need to follow Illinois’s legal process for getting a divorce if you wish to end your marriage. Keep in mind that you must reside in Illinois for at least 90 days in order to file for divorce in Illinois.

Across the country, thousands of unmarried but committed couples have made the decision to move in together. This reality is undoubtedly a reflection of changing social mores, but some research suggests that couples who live together before marriage may have a greater chance of getting divorced than those who wait to live together until after their wedding.

Research on Cohabitation and Marital Satisfaction

One recent study surveyed over 1,000 married people between the ages of 18 and 34 to gain insight into the relationship between cohabitation and marital satisfaction. All participants had been married for ten years or less. Some of the survey questions included:

• What was the dedication that each spouse had to each other?

“Palimony” is a term sometimes used after a couple has ended a long-term relationship in which they lived together without marriage. There are different definitions for palimony because it is not an official legal term but a play on words using “pal” and “alimony.” The basic definition is that it is the equivalent of spousal maintenance for cohabiting couples. Some expand that definition to include each party’s right to shared properties from the relationship. Illinois residents need to know that the state does not recognize palimony as a right between unmarried couples but that they can establish property claims by creating a cohabitation agreement.

Palimony Rulings

A 1979 Illinois Supreme Court ruling on the case of Hewitt v. Hewitt is often cited as a landmark decision that set the precedent on issues such as palimony. Since the early 1900s, Illinois has outlawed common law marriage, a practice that recognizes long-term domestic partners as effectively married. In the 1979 case, the Supreme Court found that cohabitation does not grant people the same rights to property and financial support as they would receive if they had been married. The Supreme Court was asked to reconsider this ruling in 2016 with the case of Blumenthal v. Brewer but upheld its original decision. Because of these rulings, cohabitants living in Illinois have no legal claim to palimony because it would give them the same benefits as spousal maintenance.

Cohabitation Agreements

How do you protect yourself financially in Illinois in the event that you break up with your partner who you have been living with? One way is to cosign when purchasing major properties such as a home, which gives you shared ownership of the property. Another way is to create a cohabitation agreement, which is similar to a prenuptial agreement in a marriage. In the cohabitation agreement, you can settle several issues on how to divide shared properties and expenses, including your:

Spousal maintenance payments in a divorce agreement often have a set duration, based on how long the spouses were married. In Illinois, the maintenance payor can petition to terminate the payments before the end date if the recipient has remarried or is living with someone else in a de facto marriage. Determining whether someone has remarried is straightforward, but the two sides may disagree about whether the recipient’s cohabitation is fulfilling the same role as a marriage.

Weighing the Evidence

Cohabitation becomes a de facto marriage when a spousal maintenance recipient is in an intimate relationship that includes financial support or codependency. Illinois law refers to it as living with someone on a resident, continuing conjugal basis. Illinois courts use six factors to determine whether cohabitation reaches this status:

• The length of the relationship;
• How often the cohabitants are together;
• What type of activities the cohabitants do together;
• How connected their financial affairs are;
• Whether they vacation together; and
• Whether they celebrate holidays together.

Recent Case

In the case of In re Marriage of Walther, an Illinois appellate court granted a man’s request to terminate spousal maintenance payments because his former wife’s cohabitation with another man qualified as a de facto marriage. The woman began seeing her new romantic partner while she was separated from her husband and moved into an apartment near him during her divorce. After the divorce, the woman slept at the man’s house on a regular basis for about a year. Her daughter moved into the man’s house about halfway through that period. The woman and her daughter eventually relocated to a new apartment after the man’s sister kicked them out of the residence. The appellate court cited several factors that pointed to this relationship being a de facto marriage:

Society 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: