How Does a Cohabitation Agreement Protect Me in Illinois?

In 2016, the Supreme Court decided that unmarried couples cannot claim legal rights on each other’s property after they part ways. However, ending a long-term relationship is already a challenge, especially if expensive assets are involved.

Deciding who gets what can be difficult in this case. Since Illinois courts don’t recognize common-law marriages, unmarried couples ask Schaumburg family law attorneys to draft cohabitation agreements.

What is a Cohabitation Agreement?

A cohabitation agreement is a prenuptial agreement that doesn’t require marriage. It defines the terms of a contract allowing cohabiting parties to determine rules if either of them terminates the relationship. In contrast, marriage is a contract. It can be dealt with via a legal divorce process that includes equitable property division as per the Illinois Marriage and Dissolution of Marriage Act.

The ideal cohabitation agreement covers the needs and concerns of both involved parties. This includes shared expenditures and whether they involve children and home costs. It should also address the need to blend assets.
The agreement can be drafted before or after the couple or individuals decide to separate. Some of the issues that it should address include the following:

  • Property division post-separation.
  • Health insurance coverage.
  • Parental responsibilities in case children are involved.
  • Debt payments – mutual debts can be split between the two.

The agreement allows couples living together, but aren’t married, to commingle assets and determine their distribution if they decide to separate. This way, they can protect themselves and ensure they have support to fall back on if they are homeless after a separation or have child custody.

This property can be anything from cars and furniture to pets and appliances. The agreement can also come in handy if the separating individuals cannot decide how to settle certain debts or divide property fairly/equitably. However, unlike a divorce agreement, a cohabiting agreement doesn’t include spousal or child support. The court settles these issues. Plus, cohabitation automatically terminates maintenance in the state unless the involved parties agree otherwise beforehand.

Cohabitation Agreements in Illinois

Cohabitation agreements only rose in prominence in Illinois from 2016 onwards. Before, separating cohabiting couples did not have court protection like married couples do. Take the 1979 Hewitt v. Hewitt case, for instance. Victoria Hewitt and Robert Hewitt lived together from 1960 to 1975 and had three children. They were never married. When they decided to separate, Victoria filed a lawsuit asking the court to intervene for her share of the property that the couple accumulated while living together.

However, the court held onto its ruling that it could not get involved in property disputes involving unmarried couples. Allegedly, her suit was unenforceable since the Illinois Marriage and Dissolution of Marriage Act only recognized marriage as a legal relationship. In other words, since 1979, it was established that even if unmarried couples were living together before they separated, they could not get relief from the court.

Things didn’t change till 2016 when the Illinois Supreme Court took on a case between same-sex partners, Blumenthal v. Brewer. Like the Hewitt case, the couple was not married and had been domestic partners since 1981. The couple owned a house in Chicago and asked the court to settle a property dispute when they separated in 2010.

They asked the court to divide the residence, and in a counterclaim, Brewer asked for a share of Blumenthal’s business to equalize assets. In this case, Blumenthal referred to the Hewitt case by asking the court to apply its rationale to deny the division since the couple wasn’t married. Brewer argued that since same-sex marriages were not recognized in the state, the Hewitt rationale was invalid for their case.

The Illinois Supreme court again made it clear that only married couples were protected legally. The logic was that since marriage is a legally protected relationship, the court does not act discriminatorily when it refuses to grant the same protection to unmarried couples.

The only thing the latter could opt for was a cohabitation agreement. Until 2012, the agreement was rejected to encourage marriages and discourage common-law marriages. Cohabitation agreements were accepted after the Illinois Religious Freedom Protection, and Civil Union Act was passed.

Why You Should Create A Cohabitation Agreement

A cohabitation agreement can act as your insurance if you decide to separate from a partner you have lived with for years. If you accumulated assets and debts with them during that time, the agreement could ensure you are not left high and dry when you part ways.

According to Schaumburg family law attorneys, here are some of the ways that the agreement can protect you:

By Clarifying Household Finances

Financial disputes are the main source of contention between most couples, whether they are married or not. During cohabitation, you may make mutual purchases, share a bank account and even transfer property or money to one another. You may even share debts. Without an agreement in place, you may pay more than you should.

A cohabitation agreement will clarify what each person should contribute to household expenses. This includes bills, childcare expenditures, groceries, and other goods. If you decide to split ways, the agreement will outline what you and your ex are entitled to financially regarding shared assets.

By Determining Expenditures for Children and Pets

Cohabitation agreements can also cover children and pets that you share with your partner. While support and parenting agreements may invalidate it, a cohabitation agreement can determine how their expenditures are divided. The agreement can also detail what will happen to pets if the cohabiting partners separate. So if you want to ensure your pet cat remains with you when you leave, ensure it is mentioned in the agreement.

By Determining Medical Care and End-Of-Life Requirements

Legally married couples have certain rights when it comes to partner care, but unmarried couples don’t. It can be shocking to learn that you don’t have any decision-making powers when your partner passes away or is paralyzed because of an accident. The decisions can include medical care, funeral arrangements, and how assets are given to the surviving partner.

A cohabitation agreement that details your and your partner’s wishes for medical care, end-of-life care, and even asset distribution can prove invaluable. While you can ask Schaumburg family law attorneys to draft a will to secure those rights, the agreement can act as a precursor.

What Happens If Cohabiting Couples Get Married?

Unlike divorcing couples, unmarried couples have to count on the civil court to enforce a cohabitation agreement, whether they live together or not. If they get married, on the other hand, the agreement terminates. If they get a divorce later, the couple must follow matrimonial laws to divide assets and property.

If they cannot agree on property division, the court can intervene. However, since marital property is divided equitably, not equally, in Illinois, the decision will be based on several factors. This includes shared income, needs of both parties, the needs of the children, etc.

If you still want to get married, protect yourself. Ask Schaumburg family law attorneys to change the cohabitation agreement into a prenuptial agreement before marriage.

Who Needs A Cohabitation Agreement?

Contrary to popular belief, not every cohabiting couple needs a cohabitation agreement. Some can have a lasting relationship without it. In this case, you need to ensure that your assets remain separate, and you don’t have a legal obligation to take care of your partner’s debts if they pass away before you.

Besides this, Illinois only recognizes cohabitation if the individuals involved live together continuously and conjugally. So if you live with your partner on some days and not others, that is not cohabitation. The term ‘conjugal’ has different definitions, and whether it applies to your case or not depends on the circumstances surrounding it.

There is one pitfall that most cohabiting people are unaware of regarding this agreement. If someone lives with another person but is not romantically involved with them and gets a divorce, their spousal maintenance is terminated. Your Schaumburg family law attorneys will tell you the same, but true professionals will ensure your rights are protected.

Contact The Law Office Of Fedor Kozlov For A Consultation Today

Whether you are going through a contentious divorce, cannot decide on spousal maintenance or child support, or need a cohabitation agreement drafted, contact our Schaumburg family law attorneys at The Law Office of Fedor Kozlov for a consultation today! We understand how difficult your circumstances are and are determined to help you through them.
At this time, you need skilled family attorneys who have your best interests at heart and can ensure your rights are protected. Our lawyers can protect your family, help you resolve conflicts, and set a solid foundation for your future life.

Dial (847) 241-1299 to book a completely confidential meeting with our attorneys. We focus exclusively on family law cases and are experts at providing bespoke solutions for each client irrespective of case complexity. We don’t balk in the face of a challenge because we know we may be your only hope. Don’t wait to fight for the future you and your family deserve.

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