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Cohabitation in Illinois

 Posted on August 28, 2018 in Family Law

IL family lawyerNowadays, many more couples in Illinois are electing to simply live together or cohabitate, rather than getting married. This suits some much more, as a cohabiting relationship can simply be ended when one or both parties feel like it, without the time and trouble of a divorce. However, there are decided negatives to living together without the protection of being in a marriage. Either way, couples should understand the ramifications of foregoing marriage and/or living in a cohabiting relationship lest they get into a situation where they have no protection.

Property Rights

One issue that can be significant if a cohabiting couple splits up is that of property rights. A married couple who decide to divorce receive the benefit of Illinois’ equitable distribution laws, which hold that upon a divorce, all marital property will be divided “in just proportions” while considering a number of factors, including the length of the marriage, the current and future earning potential of each spouse, and any alleged dissipation of marital assets (not in the sense of punishing for misconduct, but in the sense that it would be unjust to reward any waste of assets). A cohabiting couple has no “marital” property and as such, no real law to fall back on other than the simple axiom that whoever purchased an asset will, in many situations, own it.

To avoid these types of issues, Illinois law does generally permit the enforcement of what is called a cohabitation agreement. While not all of these types of agreements will be enforceable in court, especially not if they contain unconscionable provisions (so one-sided that the average person’s conscience would be shocked), many do in fact provide an enforceable mechanism for dividing up property and apportioning other rights. Illinois will generally not enforce so-called “palimony,” (payments made to one half of an unmarried couple from the other), but a written agreement for disposition of assets and handling issues such as child custody is usually a different matter.

Spousal Support

The other major issue that comes up when cohabitation begins or ends tends to be spousal support. While this is usually not an issue for a cohabiting couple breaking up (as stated, Illinois generally does not recognize ‘palimony’ payments), where it can become an issue is if a divorced or separated person begins to cohabitate with someone else. Illinois law allows spousal maintenance payments to a divorced spouse to end upon proof that that person is living with someone else on a “resident, continuing, conjugal basis.”

This definition has come under question in multiple Illinois Supreme Court cases, but the takeaway that the average person should be aware of is that a relationship does not have to be sexual or romantic in nature to be “resident” and “conjugal.” In the past, this type of relationship has been found to exist between friends, between housemates (one of whom was impotent), and many others who shared space. The key is how close the relationship is - if two people share bank accounts, holidays and major decisions, most courts will say they are cohabiting, even if they do not have a romantic or sexual relationship.

Call an Experienced Attorney for Help

Whether you want to get into a cohabiting situation or are coming out of one, having a knowledgeable attorney on your side can help avert a lot of headaches. The skilled DuPage County cohabitation attorneys at Kathryn L. Harry & Associates, P.C. can sit down with you and figure out how best to ensure that your rights and your relationship are protected. Contact our offices today to set up an initial appointment.



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