Common Law Marriage Is Not Legal In Illinois – What To Know

Common law marriage has existed in the US since the 19th century. Today, approximately 10 states recognize common-law marriage. However, Illinois is not one of them. In this article, learn more about common-law marriage, then talk to our Schaumburg family law attorney for more information.

What Is Common Law Marriage?

Common law marriage is a relationship that some states recognize as marriage without a marriage license or official marriage. States that allow common-law marriages afford couples the same rights as traditionally married couples. Common law marriage basic features include:

Two people want their relationship to be as if they were married
They act on the intention to be as if they were married by living together and acting as if they are married
When they established the relationship, they were in a state that recognizes common-law marriages
They meet all requirements under the law for a common-law marriage

If the couple meets these criteria in a state that recognizes common-law marriage, their legal status is the same as a married couple. This means they may enjoy the benefits and rights of a marriage, including:

Tax treatment
Inheritance rights
Social Security benefits
Employment benefits
The right to ask a family court to divide property or award spousal maintenance when the marriage is ended

A common law marriage couple also has the same legal responsibilities as traditionally married couples, including providing support for each other. But what about Illinois? Does the state recognize common-law marriages?

Common Law Marriage Is Not Allowed In Illinois

Common law marriage is not practiced in Illinois, and you must have a license to marry legally. However, if you entered a common law marriage in another state that authorizes them, it will be recognized in Illinois. But if you did not come to Illinois already in a common law marriage, you cannot be in one in Illinois. Also, the Illinois statutes say that the following types of marriages are not recognized in the state:

When a previous marriage is undissolved
Marriages between close relatives, such as brother-sister, uncle/niece, and first cousins
Common law marriages

States that recognize common-law marriages include Texas, South Carolina, Rhode Island, Colorado, and Iowa. New Hampshire only recognizes common law marriages for purposes of inheritance.

Cohabitation Laws And Property Rights In Illinois

One of the benefits of being married is that it guarantees certain important rights involving child support, custody, property, and finances. In Illinois, the only way to have the rights of a married couple is to get married. Illinois courts find that even if a couple lived together for years, they have no automatic legal protections when they separate.

However, there are still couples in Illinois who would rather live together legally but not be married. If that is the case, you can both sign a Cohabitation Agreement, a legally binding contract laying out how property and finances will be divided if you do not stay together. But this agreement has limits; you cannot, for example, decide child custody or child support in a Cohabitation Agreement; only a family court judge may do that.

Signing a Cohabitation Agreement is the best way to assure your rights in Illinois in a common law marriage that was entered into in another state. When you do this, you have established how property and finances will be divided if you do not stay together.

What Rights Does An Unmarried Couple Have In Illinois?

A common question is whether an unmarried couple in Illinois has any legal rights when there is a property or child custody dispute. The Illinois Supreme Court ruled in 2016 that an unmarried couple does not have a legal right to the other’s property if they are no longer together. This is the case even when the couple have children. This is one of the reasons that unmarried couples in Illinois can benefit from the Cohabitation Agreement.

You Are Not In A Common Law Marriage After 7 Years

Many people believe that if you live together for seven years, you are in a common-law marriage. As explained earlier, Illinois does not recognize common law marriages, unless you entered such an arrangement in a state that recognizes them.

However, many people believe that living together for a certain time in the US means you are in a common-law marriage. In many cases, the number that people believe is seven years. Why people often believe this is unclear, but it is not true.

In states that recognize common law marriage, how long the couple lives together does not typically influence whether the union is recognized under the law. Instead, a couple generally has to live in a state that recognizes common law marriage, intend to get married, and act in public as if they are married. This means that you could live together under these rules for any length of time, either a day or years. As long as you agree to be married and hold yourself out to friends, family, and the public that you are married, the common law marriage is likely valid.

Remember that living together is not enough for a common-law marriage to be valid. If a court ever looks at the relationship to determine if there is a common law marriage, living together is a factor, but there are others it could consider, such as:

Did you take the other person’s last name?
Do you have contracts together for a home or vehicle?
Do you have a joint bank account and file joint tax returns?
Do you have kids together?
Do you share the expenses of the household?

Why Do People Enter Common Law Marriages?

In many situations, it is those who lack financial resources who enter common-law marriages. It is less expensive and involves simply stating you wish to be married and entering into a common-law marriage in a state that recognizes the practice. Common law marriage also was seen as helping women in the past when they were often more economically dependent on their spouses.

For instance, a common scenario in the past was a woman who lived with a man and was totally financially dependent on him. He earned the money and she performed the housework. In this traditional relationship, she would not be entitled to property inheritance, Social Security, or other benefits because they were unmarried. In a common law marriage, she would be eligible for spousal benefits and also widow’s benefits if her spouse passed away.

Illinois Common Law Questions And Answers

There are many misconceptions about common-law marriages. Below are some of the most common questions:

Am I In A Common Law Marriage If We Have Lived Together For Years?

Illinois does not recognize common law marriages, but in states that do, how long you live together does not determine if you are married. Each state has its own requirements in this regard. Generally, the couple must act as if they are married and tell others they are married and live in the same home.

Does My Common Law Spouse Inherit My Property When I Die?

They can but it does not happen automatically. Your spouse may be able to claim your assets after you pass, but the surviving spouse in a common-law marriage could have difficulties proving the union. This could make it easier for other family members to claim the estate. That is why you should to a family law lawyer about your to protect your rights if you are in a common-law marriage.

Can I Be In A Common Law Marriage By Accident?

Remember that Illinois does not allow common law marriages, but if you lived in a state that allows them, both parties must have intended to be married. So, you cannot be in a common-law marriage unless you intended to be. Family court judges will typically look at the actions of both parties in a relationship to determine if they had a common-law marriage.

How Do You Hold Yourself Out As A Married Couple?

The state will recognize the union if you come to Illinois in a valid common-law marriage. But a common requirement of a common law marriage is holding yourself out as if you were married. What does this mean? Typically, it means showing to your friends, family, and community that you are married, and using words including ‘husband’ and ‘wife’ when you talk about each other.

Some courts have noted that because so many people live together now who are not married, cohabitation is less important than it was to determine if a couple is in a common law marriage. However, it would be challenging to convince a family court judge that the marriage is valid if you do not share the same home.

Contact Our Schaumburg Family Law Attorney Today

Common law marriages are less common than they were, and some states are moving away from the practice. However, common law marriages in Illinois are recognized if they were entered into in a state that recognizes them. If you have questions about your rights in a common law marriage, please contact our Schaumburg family law attorney at Law Office of Fedor Kozlov, P.C., today at (847) 241-1299 for legal assistance.