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Navigating Cohabitation – An Essential Guide To Cohabitation and Cohabitation Agreements In Illinois

When two people decide to live together, they enter into a legal agreement whether they realize it or not. In Illinois, specific laws govern cohabitation agreements and what happens if the relationship ends. If you are considering living with your partner, it is beneficial to understand the implications of doing so. A must-read for unmarried couples living together in Illinois, here is an essential guide to cohabitation and cohabitation agreements in Illinois.

The Basics of Cohabitation and Cohabitation Agreements

What is Cohabitation?

It is increasingly common for couples in a romantic relationship to live together and start family units without getting legally married. This is known as “cohabitation.” In simple terms, Cohabitation is a form of living together in an intimate relationship recognized by Illinois law.

What Are Cohabitation Agreements?

A cohabitation agreement is a contract between two individuals who plan to live together without getting married. The agreement defines the rights and obligations of each party toward each other in the event of termination or dissolution of their relationship. A cohabitation agreement is a legal contract between an unmarried couple. This agreement establishes rights and obligations normally granted upon marriage in most states. Cohabitation agreements are similar to prenuptial agreements in that they can provide for ownership of property, division of that property in case of a breakup, payment of support, payment of expenses, and more. Thus, cohabitation agreements can help prevent long-term legal and financial problems if the couple ends their relationship. However, not all states in the USA recognize the legality of cohabitation agreements.

Why were cohabitation agreements developed?

Family law attorneys developed cohabitation agreements because they understood that people in informal civil partnerships do not have rights regarding finances or property simply by virtue of a romantic relationship. People living together often want to work out more formal arrangements related to paying expenses, property ownership, etc. The cohabitation agreement allows couples to do just that.

What are the benefits of Cohabitation? 

Many people living together in a romantic relationship are concerned that if they get married, and things don’t work out, they will have to get a divorce, which they worry is an expensive and time-consuming process. They believe that the costs involved in getting married and the legal obligations aren’t worth the expense and trouble involved with a divorce.

What are the risks of Cohabitation?

Unmarried people who live together take substantial financial risks and can create legal complications between them by remaining unmarried. For example, should cohabiting people purchase a home together and later break up, ownership of the home and payment of expenses and proceeds should the home be sold become major problems. However, people in civil partnerships do not have rights around finances, property, or children.

The legal problems surrounding cohabitation became widely publicized with the 1976 case between actor Lee Marvin and his former significant other, Michelle Marvin. In that case, the California Supreme Court decided that California state law regarding marriage and divorce did not govern the division of property between a cohabiting couple. However, the court did find that a valid contract between the couple would be enforceable.

Common law marriage was abolished in Illinois by statute in 1905. Illinois law states: “Common law marriages contracted in the state of Illinois after June 30, 1905, are invalid.” 750 ILCS 5/214. In Illinois, as in most states, you are not considered legally married simply because you lived with another person for a set period of time. Only seven states and the District of Columbia now recognize common-law marriage. In Illinois, there are no common law marriage options, meaning unmarried couples do not have “marriage-like” rights with respect to financial support or property, even if they have lived together for several years. 

Navigating Cohabitation Laws In Illinois 

Are cohabitation agreements binding in Illinois?

The simple answer is NO. Cohabitation agreements are binding in other states outside Illinois. However, In Illinois, cohabitation agreements are not legally binding.

How Illinois Treats Cohabitation

Cohabitation agreements in Illinois are unenforceable. Illinois takes a traditional approach in that the state is interested in protecting the institution of marriage, considering that the beneficial purpose of marriage is to encourage child-rearing. Illinois public policy does not recognize legal arrangements between romantic partners outside of marriage.

Cohabitation Agreements in Illinois Held Illegal by Courts

Over thirty years ago, the Illinois Supreme Court ruled that cohabitation agreements in Illinois were invalid. Hewitt v. Hewitt. The court stated that it violates state law and public policy for an unmarried person to financially recover from the other person under the guise of a “common law” marriage. The plaintiff’s claims were dismissed because they contradicted the public policy outlined in the Illinois Marriage and Dissolution of Marriage Act. The stated policy goal of the Illinois Marriage and Dissolution of Marriage Act, at the time, was to “strengthen and preserve the integrity of marriage, not to recognize the rights of unmarried individuals.”

In the case of Blumenthal v. Brewer, the Illinois Supreme court considered whether some marriage benefits should be available to parties in a non-marriage relationship. The court held that granting marriage-like rights to unmarried couples undermines the legislative intent to prevent people from privately creating marriage-like relationships. Blumenthal v. Brewer, 69 N.E.3d 834. So, contracts between a couple living together in Illinois are unenforceable unless they are independent of the party’s relationship.  A couple that wishes to receive the legal benefits of marriage (rights to property of a spouse upon death, rights to alimony or maintenance, and property rights) must be legally married in Illinois.

Answering The Most Common Questions About Cohabitation and Cohabitation Agreements In Illinois

What is the difference between an Illinois cohabitation agreement and an Illinois prenuptial agreement?

A cohabitation agreement differs from a prenuptial agreement in that the parties to a cohabitation agreement do not intend to be married. In contrast, the parties to a prenuptial agreement intend to be married and must get married for the prenuptial agreement to take effect. A prenuptial agreement is valid and enforceable in Illinois, but a cohabitation agreement is not.

What happens if an Illinois unmarried couple purchases real estate? 

If cohabiting parties in Illinois buy real estate together, the real estate is simply treated as a jointly owned property, as if the couple were simply partners in ownership. Actions to divide jointly owned property are called partition suits. Either person in the couple may ask the court to partition the property, and the court will equitably divide the property. 

How is the household property divided if an unmarried couple splits in Illinois? 

The Illinois Marriage and Dissolution of Marriage Act (Illinois divorce law) does not apply in these situations. Therefore, there is no joint property unless it is owned as such with evidence like a purchase agreement or bill of sale. The person who purchased the item is the owner of that item. Naturally, proof of purchase is very important in this case. 

What happens when a cohabiting person dies in Illinois? Does the other person inherit anything?

Suppose one person in a cohabiting couple dies. In that case, unless they have an estate plan (trust, will, etc.) that specifically grants property to the other person, the surviving person gets nothing by operation of law. 

Is “palimony” owed if an unmarried couple breaks up in Illinois?

No. There is no such thing as “palimony” or maintenance for unmarried people who live together in the State of Illinois. The only way to receive alimony-like payments in Illinois is by being legally married.

Protecting Yourself and Your Partner

Cohabitation agreements are not enforced in the State of Illinois due to a public policy agenda that does not recognize unmarried couples as having rights or obligations similar to those enjoyed by married couples. Therefore, cohabiting couples should be aware of their rights, especially with regard to issues such as the purchase of real estate and the division of household property when the relationship ends. Additionally, unmarried couples should create a valid estate plan to ensure that their wishes are carried out if one partner dies or becomes incapacitated. Finally, be aware of potential impacts on child support or pending divorce proceedings before entering into any cohabitation agreement.

Knowing the law and your rights is essential to navigating cohabitation in Illinois. It is always best to consult a qualified attorney if you have any questions concerning your rights or obligations as an unmarried couple. A skilled family law attorney can help provide you with advice and guidance on how best to protect your interests and those of your significant other.

By understanding the law and taking steps to protect yourself and your partner, you can confidently navigate cohabitation in Illinois. If you need help with a situation involving cohabitation in Illinois, contact our offices and speak to a family law attorney today.

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