Illinois Common-Law Marriage Is Illegal How To Protect Yourself
Common-law marriages are legal in some states, but Illinois is not one of them. However, there are ways that you can secure your rights in Illinois as a common-law couple, including the drafting of a cohabitation agreement with the assistance of your attorney. Keep reading to learn more on this subject, and if you have questions about common-law marriage in Illinois, our Schaumburg family law attorneys can assist you.
Common-Law Marriage Overview
Common-law marriage refers to a relationship where the state recognizes a marriage without a marriage license or official union. If a state recognizes a common-law marriage, it gives the common-law couple the same rights as married couples.
Illinois does not allow residents to enter a common-law marriage. So, even if you lived with your partner for 10 years in Illinois and take their last name, your union is only recognized if you have gotten a marriage license. So, the relationship is not recognized by Illinois law, and if you and the other party break up, neither can sue for marital rights, including alimony or child support.
However, Illinois will recognize such a marriage entered into in other states. The Full Faith and Credit Clause means that every state must recognize such a union if there is a legal dispute. For example, if you are in a valid common-law marriage and want to divorce in Illinois and receive alimony or child support, the courts will treat the matter like a divorce involving a traditionally married couple.
Thus, the courts in Illinois will recognize a common-law union if there is a divorce proceeding. The only other avenue to get out of a common-law marriage other than divorce is if the other party dies.
States and localities that currently allow common-law marriages are:
- Iowa
- Texas
- Colorado
- Kansas
- Oklahoma
- Utah
- Rhode Island
- Montana
- Washington, D.C.
Common-Law Marriage Benefits
The biggest reason people enter into common-law marriages is they have the same marital benefits as legally married couples without going through the formal marriage process. So, in states that recognize the union, there is no difference between a traditional marriage and a common-law marriage, other than the certificate and ceremony.
Many couples enter into a common-law marriage because of the expenses of a wedding and may want to avoid dealing with the time and processes involved. But a common-law marriage can become a hassle in some ways because there may not be documentation that the two are married. In addition, you may need to regularly prove you are married if you want certain benefits, such as to be on your spouse’s health insurance.
Why Illinois Does Not Perform Common-Law Marriages
In Hewitt v. Hewitt, the state supreme court found that common-law marriages violate public policy recognizing agreements to discourage unmarried people from cohabitating and having children. Modern attitudes towards unmarried relationships have shifted, but laws have not caught up. In 2016, the Illinois Supreme Court stated that unmarried couples still do not have joint property rights and cannot obtain spousal support.
Unmarried Couples Rights In Illinois
Because the Illinois Supreme Court has found unmarried couples lack rights to each other’s property if they leave each other, it can be beneficial in Illinois to sign a cohabitation agreement to protect your rights. This agreement works similarly to a prenuptial agreement and is a contract between two adults that allows them to state how to handle finances and assets if the relationship ends. However, a cohabitation agreement, like a prenuptial agreement, cannot dictate matters such as parenting time or child support; only the courts can do these things.
Frequent Illinois Common-Law Marriage Questions
Common-law marriage can be a confusing subject. Below are frequent questions that people ask about the practice in Illinois:
Are You Married After Living Together For Years In Illinois?
No. No matter how long you have lived together, common-law marriages are not recognized in Illinois. Even if Illinois did recognize them, it is a myth that people are in a common-law marriage after living together for a certain period. Whatever number you may read online about living together for a certain time – three, seven, or 10 years – it is not valid. Even in states where the practice is legal, time is not the critical factor in most cases. What matters is how the couple presents themselves to the public and where they live. Also relevant is if their finances are combined, and they are regularly part of each other’s lives.
However, if you meet the requirements of a common-law union in a state that recognizes it and move to Illinois, it can be recognized. This is the case if you have fulfilled common-law marriage requirements in the state you left. But you could have challenges proving the union in Illinois.
How Long Has Common-Law Marriage Been Illegal In Illinois?
The practice was outlawed in the state in 1905. Since then, the state courts have upheld that a couple living together does not have the rights of a legally married couple. The general trend in the country is away from common-law marriages, but there are ways to make a legal agreement with your partner if you do not want to be married and want to protect your rights. Please talk to a family law attorney in Schaumburg for more information.
What Rights Do You Have As An Unmarried Couple In Illinois?
You do not have legal protections if you are a couple unmarried in Illinois. This is because the courts in Illinois have recently ruled that only a married couple can, for example, split property and receive an inheritance.
This is why cohabitation agreements have become popular and are an effective way to protect your rights. A cohabitation agreement works like a prenuptial agreement but does not require a marriage for the courts to recognize it. While there are limits to cohabitation agreements regarding children, they are worth doing for unmarried couples in Illinois.
Can My Unmarried Partner In Illinois Inherit My Property?
The only way this can happen is if you execute a will. If you do not have a will and pass away, the assets are passed according to Illinois law.
How Do I Prove A Common-Law Marriage In Illinois?
If you have a common-law marriage done legally in a state that recognizes them, Illinois will recognize it. However, you must provide proof, which could be a written agreement each party has signed. Other ways to prove the validity of the union could be:
- Testimonies from friends and family who know you about the union
- A document proving that one of you took the other’s name
- Proof of a joint rental agreement or lease
- Proof that you both live in the same home
- A birth certificate that shows both partners’ name as the child’s parents
- A mortgage or loan document with both parties’ names
- An affidavit from family members or friends who know about the union
Does A Common-Law Marriage Require A Divorce?
Yes, if you entered a common-law marriage in a state that recognizes them, you need a divorce to dissolve it legally. Because Illinois recognizes common-law marriages from states that allow them, partners in Illinois may claim rights to alimony, child support, child custody, and property division. However, the process could be smoother if the couple signed a cohabitation agreement.
For example, if you entered into a common-law marriage in Kansas and moved to Illinois, you can ask that the state divide your assets just like any divorce. The only catch is that you will need to take steps to prove that you have a valid common-law marriage from the other state.
Summary
If you lived in a state that recognized your common-law marriage and now reside in Illinois, there are legal options if you want to keep half of the assets acquired during the union. To protect your rights, the best thing you can do is keep records of everything that can be used in court to prove that you were in a common-law marriage in another state.
You should also talk to an Illinois family law attorney immediately if you are in a common-law marriage recognized by Illinois. With adequate legal planning, including a signed cohabitation agreement, it is possible to protect your rights if you want to divorce.
Contact Our Schaumburg Family Law Attorney
Common-law marriages are illegal in Illinois, but they are recognized if done legally in a state that recognizes them. If you have issues surrounding Illinois common-law marriage, you should seek legal advice promptly. Please contact our Schaumburg family law attorney at Law Office of Fedor Kozlov, P.C., today at (847) 241-1299.