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Understanding Common Law Marriage in Illinois

Updated: Jul 1

Understanding Your Rights: Navigating Common Law Marriage in Illinois

Is common law marriage a recognized legal union in Illinois? While the concept of common law marriage exists, emphasizing how couples live together and present themselves to others, Illinois does not establish such unions. However, Illinois does not consider common law marriages legal, except for those recognized in another state before the couple moved to Illinois. This article unpacks the implications for couples in or moving to the state, clarifying legal alternatives for relationship recognition and asset protection in the context of common law marriage in Illinois.


Common Law Marriage in Illinois Key Takeaways

  • Common law marriage does not legally exist in Illinois, having been abolished in 1905, but the state recognizes common law marriages formed in other states.

  • Cohabitation in Illinois does not provide unmarried couples with automatic legal protections, making cohabitation agreements essential for asset and property division.

  • For child custody and support among unmarried couples in Illinois, the mother is granted automatic custody, while fathers must legally establish paternity to obtain custody or visitation rights.


couple living together

Exploring the Legality of Common Law Marriage in Illinois


The notion of common law marriage dates back to an era when the formal process of marriage was not always accessible. It’s noteworthy that within Illinois, there is no recognition for a legal status akin to common law marriage. Illinois common law marriage simply does not exist in this state, adhering to a stance that has been consistent since 1905.


Over one hundred years ago, Illinois put an end to recognizing any new common law marriages and has ever since upheld that couples living together without official marital ties are not entitled to the same legal benefits as those who are married. However, Illinois makes an exception for couples considered common law married in another state and then moved to Illinois, acknowledging the legal validity of such unions under specific conditions.


Although Illinois maintains a strict position against recognizing domestic partnerships as common-law marriages within its jurisdiction, it does acknowledge validly established common-law marriages from other states where they remain legally recognized. This means that if a couple was common law married in another state that recognizes such unions, and they meet the necessary criteria, Illinois will recognize their relationship's legal status. This acknowledgment allows for the application of certain legal benefits, particularly in matters of property division and inheritance, similar to those afforded to traditionally married couples.


Is There Legal Ground for Common Law Marriage in Illinois?


In Illinois, although entering into a common law marriage within the state’s borders is not permissible, should you and your partner have established a valid common law marriage in another jurisdiction where such unions are recognized, upon moving to Illinois, your marital status will be acknowledged as legally married.


Similarly, this acknowledgement encompasses matters of separation. Thus individuals who initiated their union through a common law marriage in another locale are entitled to pursue divorce proceedings within Illinois.


The Evolution of Common Law Marriage in Illinois Law


The evolution of common law marriage in Illinois has been marked by pivotal shifts, including:


  • The termination of recognizing new common law marriages from 1905 onward

  • Alterations across legislative and judicial landscapes

  • The consequential decision in Hewitt v. Hewitt by the Illinois Supreme Court.


Currently, for a marriage to be considered legally binding within the state, it must involve obtaining a license, undergoing solemnization, and being recorded with the county clerk’s office. Nevertheless, if individuals were party to a common law marriage legitimately established in another state prior to relocating to Illinois, that union is acknowledged by Illinois law.


Defining Common Law Marriage: A National Perspective


Across the United States, there’s a divergence in how common law marriage is perceived and recognized. This type of relationship involves a couple living together and identifying themselves as married without partaking in an official marriage ceremony or securing a marriage license.


In recent times, there has been a noticeable movement away from acknowledging common-law marriages within several states. Notably, Illinois and Alabama have abolished this concept, indicating an overarching trend across the nation against such informal matrimonial recognitions.


States That Recognize Common Law Marriages


Despite a general decline in their prevalence, there are still eight states that permit residents to enter into common law marriages. There are only eight states where common law marriage is recognized and give unmarried couples rights by law. They include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas and Utah.


In most of these jurisdictions, statutory law provides the basis for recognizing common law marriage whereas in Rhode Island and Oklahoma case law forms the foundation for recognition of common law marriage. It’s important to acknowledge that. That legal perspectives on this matter are continually evolving. For example, as recently as 2016 Alabama made the decision to discontinue acknowledging new common-law marriages.

If you have previously lived in any of these states, there is a possibility that the court will review the matter, but it is ultimately up to the court to decide on how the matter should be determined based upon Illinois law.


The Criteria for a Valid Common Law Marriage


For a common law marriage to be legally recognized, several conditions must be met. The conditions that must be met are the following:


  • The couple lives together.

  • They publicly present themselves as married.

  • Both parties possess the legal ability to enter into marriage.

  • There is a mutual decision between them to live as spouses.


While there’s no stipulated length of time for cohabitation, couples should demonstrate signs like adopting a shared surname or maintaining joint financial accounts. In some states, there are requirements that you live together for a certain period of time and that time can range between seven years to ten years.


Should partners begin living together when they lack the legal capacity to marry, they can still form a valid common law marriage once this capacity is achieved—as long as both have agreed upon being considered married.


Implications of Cohabitation Without Marriage in Illinois


woman moving

In the state of Illinois, when a couple chooses to live together without entering into marriage, they should be aware that their cohabitation has particular legal consequences. Should these couples part ways, there are no inherent legal safeguards in place for them regarding property division. This stance reflects the state’s position against encouraging cohabitation outside of marriage and provides minimal avenues for recourse among unwed partners. Although both parents are consenting adults and were in a long term relationship, rights to either party are not the same as a couple and unmarried couples rights are non-existent.


Being part of an unmarried partnership in Illinois does not entitle individuals to claim rights over each other’s assets after a separation occurs—even if the relationship resulted in children. The absence of a matrimonial bond means you hold no legal right to your partner’s property upon dissolution of the relationship.


If a couple breaks up, both parties must recognize that there are legal requirements between consenting adults to enter into an agreement to become married to gain any assets from the relationship. Becoming married is not only a choice regarding love and care for one another, but also financial decisions. That is why a prenuptial agreement may be created to protect parties within a divorce. The choice to become married ensures that the same rights are given to both parties in the relationship.


How Illinois Courts View Cohabitation


In Illinois, unlike married couples, unmarried couples cohabiting do not automatically receive legal protections regarding the division of property upon the dissolution of their relationship. This distinction underscores how critical it is for those in non-marital partnerships to enter into cohabitation agreements to safeguard their rights and assets.

A written contract for those who are in a long term relationship and choose not to become married is a choice that may resolve legal issues in the future. If a couple breaks their agreement, then there are legal consequences. This is a solution for any long term relationship that does not result in marriage.


Cohabitation agreements become particularly important because, without them, individuals who are unmarried have no inherent legal claims over their partner’s property if they part ways. The lack of automatic entitlements within Illinois courts demonstrates the essential nature of these legal arrangements for protecting financial interests among couples living together outside marriage.


Establishing a Cohabitation Agreement


It’s essential for unmarried couples to recognize that they do not receive automatic legal protections when living together. In Illinois, these couples can form cohabitation agreements that are legally binding and specify the division of finances and property. It should be understood, though, that provisions concerning child support or parenting time cannot be included within these agreements since only a court has the authority to approve such matters.


Enlisting an experienced attorney is beneficial in both negotiating and ensuring adherence to the terms set forth in a cohabitation agreement.


Protecting Your Interests: Legal Alternatives to Common Law Marriage


Illinois Supreme Court

Illinois does not acknowledge common law marriage. There are legal options available for unmarried couples seeking to safeguard their assets. One such option is entering into a cohabitation agreement.


For the effective drafting of these agreements that ensure protection of rights for those in non-marital relationships, enlisting the expertise of an accomplished family law attorney can be crucial.


Options Similar to Prenuptial Agreements


Unmarried couples can enter into cohabitation agreements, which function as legal contracts akin to prenuptial agreements yet do not necessitate marriage. These legal instruments allow for the specification of asset division in the event of a separation, mirroring aspects seen within prenuptial agreements.


Prior to making substantial financial commitments or acquisitions, it is advisable for partners who are not married to formalize a cohabitation agreement with an eye toward securing their respective monetary interests. The only alternative to a cohabitation agreement while the parties are living is to become married and enter into a prenuptial agreement or postnuptial agreement according to the law and in the eyes of the court.


In Illinois, individuals who have chosen not to marry may also consider drafting a will if they wish to grant inheritance rights to their partner. Creating separate accounts and trusts offers unmarried partners a mechanism by which they might safeguard assets that are exclusively theirs and ensure these remain non-marital property.


Understanding Non-Marital Property Rights


In Illinois, it is crucial for individuals in unmarried partnerships to understand the legal aspects regarding non-marital property rights. Such assets include those acquired prior to entering into a relationship, inheritances, gifts, and any possessions explicitly delineated as separate by binding agreements such as prenuptial contracts.


The process of determining if an asset qualifies as non-marital can be complex due to intermingling of properties within a relationship. Often this necessitates professional advice from someone experienced in legal matters.


Unmarried partners in Illinois are not automatically entitled to claim their significant other’s property upon parting ways. Yet they may have specific entitlements concerning division of shared assets or custody arrangements for children once their union concludes. Notably though, the ruling made by the Illinois Supreme Court in 2016 clarifies that individuals who cohabit without marrying do not receive protections granted through the statutes of marriage dissolution established under Illinois law.


Child Custody and Support Among Unmarried Couples in Illinois


daughter and father holding hands

The subject of child custody and support for unwed couples in Illinois is a notable issue. When it comes to the children of parents who are not married, the mother receives automatic custody rights within Illinois jurisdiction.


Fathers have the option to legally establish paternity and consequently seek custody privileges from the court. In cases involving an unmarried couple’s child, Illinois courts focus on what will serve the best interests of that child when determining custody arrangements. They evaluate numerous elements such as:


  • The financial standing of each parent

  • Their respective living situations

  • Each parent’s moral standing

  • Their capacities to sufficiently nurture and provide for their offspring


In relation to parenting time, decisions are also guided by what will most benefit the child’s welfare. Considerations made by the court include parental preferences regarding upbringing timescales, how well adapted is a young one among home life settings or broader community circles including school environments, plus aspects relating both mental health status as well as physical wellbeing across all family members concerned with these proceedings.


Parental Rights Without a Marriage


In Illinois, if an unmarried father wants to legally determine child custody, he must go through a series of legal steps and formally request these rights from the court. Unmarried mothers are by default granted full custody over their children. For fathers to be granted custody or visitation for a child whose parents were not married at the time of birth, they must first legally assert their paternity. This is the only way for a father to gain the same rights as a legally married couple.


There are multiple methods available for unmarried fathers in Illinois to claim paternity:


  • They can sign on as a father on the child’s birth certificate with approval from the mother.

  • Fathers may also register themselves within the Putative Father Registry in Illinois.

  • Alternatively, they can seek out an Order of Paternity that is issued by a judge.


After establishing his paternal status legally, only then does a father have avenues to pursue parental rights such as inclusion on his offspring’s birth record or securing custodial privileges via judicial decree.


Seeking Child Support From an Unmarried Partner


Child support is an essential aspect of family law for unmarried couples. Upon determining parentage, the obligation to pay child support can fall on either parent, regardless of whether they have been married or not.


In Illinois, the laws governing child support treat unmarried and married parents equally. These laws take into account various factors such as the income levels of each parent, what standard of living the child should maintain, and specific needs that the child might have.


The Role of the Illinois Supreme Court in Family Law


courthouse

Decisions by the Illinois Supreme Court profoundly impact family law and define legal rights regarding property for cohabiting couples in Illinois. Upholding a critical precedent set by Hewitt v. Hewitt from 1979, the court has consistently ruled that partners who are not married do not have claims to an equal division of assets upon separation. This was emphasized in 2016 with Blumenthal v. Brewer, which reaffirmed that individuals living together without a marriage or civil union cannot claim financial support or property rights under laws pertaining to marriage and dissolution in Illinois.


Consequently, these judicial decisions underscore that unmarried partners lack comparable entitlements concerning properties and finances when contrasted with those privileges reserved for legally married or civilly united couples within the state’s jurisdiction.


Navigating Divorce for Out-of-State Common Law Marriages


In Illinois, while common law marriages are not acknowledged when they originate within the state itself, the legal system allows couples with legally valid common law marriages from other states to seek a divorce in Illinois courts. For such divorces to be granted by Illinois authorities, partners must demonstrate that their union met all the requisite conditions of a lawful marriage under the statutes of the state where their common law marriage was initiated. The difficulty often lies in proving these unions since standard documentation typical for formalized marriages might not exist due to variations in laws across different states.


When it comes down to dissolving an out-of-state common law marriage through divorce proceedings in Illinois, if individuals can substantiate that their relationship fulfills all necessary criteria as per legislation of origin - essentially authenticating its legality according to those particular jurisdiction’s guidelines, then illinois courts may proceed with granting said dissolution.


Recognition and Dissolution of Out-of-State Common Law Marriages


Under particular conditions, Illinois acknowledges common law marriages that were established outside its jurisdiction, allowing for the legal division of assets. The Illinois legislature and Illinois Supreme Court recognizes these unions from other states as valid within their legal framework or when it comes to divorce proceedings. Nevertheless, without solid proof, an out-of-state common law marriage may not gain recognition in Illinois.


For a couple’s common law marriage from another state to be considered legitimate in Illinois, they need to demonstrate that their union met all necessary criteria laid down by the laws of the state where it originated. Those looking to end such a relationship through divorce in Illinois are required to present evidence confirming both their adherence to said requirements and that no previous dissolution has been granted elsewhere.


Legal Consultation for Unmarried Couples


Navigating the legal intricacies for unmarried couples in Illinois can be challenging, which underscores the necessity of obtaining a legal consultation. Especially critical is the opportunity for these couples to benefit from a complimentary discussion with a family lawyer who can help clarify their rights and offer strategies for safeguarding their interests, regardless of whether they are married or not.


To speak with a licensed attorney regarding your legal rights, call Chicago Family Attorneys, LLC at (312) 971-2581 or book a consultation online.


When to Seek a Free Consultation


Consulting with a family attorney during significant relationship transitions, such as ending the partnership or considering marriage, is essential to comprehend the legal implications and necessary measures. For unmarried couples with children who are looking for guidance on custody, visitation rights, and child support—rights not automatically granted by law—a free consultation could be particularly beneficial.


For those in cohabitation seeking to establish clear financial boundaries and property ownership terms, it’s recommended to seek legal counsel to ensure that cohabitation agreements are correctly formulated and legally binding. Individuals who have entered into common law marriages in states other than Illinois might find a consultation helpful for recognizing their marital rights within Illinois’s jurisdiction and dealing effectively with the complexities involved in dissolving their union.


Common Law Marriage Summary


Common law marriages are a complex area of law, particularly in Illinois where they are not recognized. However, this does not mean that couples living together without a formal marriage are without options.


From cohabitation agreements to establishing paternity and seeking child support, there are legal avenues available to protect your rights and interests. Whether you’re an unmarried couple living in Illinois or have a valid out-of-state common law marriage, legal consultation with Chicago Family Attorneys, LLC is a crucial first step to understanding and safeguarding your rights.


Frequently Asked Questions


Does Illinois recognize common law marriage?


Illinois does not acknowledge common law marriages. If a valid common law marriage is established in another state where it is recognized, Illinois will honor that union based upon the law of where you previously lived.


Can unmarried couples in Illinois enter into a legally binding cohabitation agreement?


In Illinois, couples who are not married have the option to create a cohabitation agreement, which is legally binding. This arrangement helps in distributing finances and property between them and offers legal safeguards for each individual should the relationship come to an end.


What are the parental rights for unmarried couples in Illinois?


Couples who are not married in Illinois must recognize that sole custody is inherently granted to the mother. Fathers will need to confirm paternity and appeal to the court if they desire custody rights.


Grasping the legal proceedings relevant to this situation is crucial.


Can couples with valid out-of-state common law marriages get divorced in Illinois?


If couples have entered into common law marriages that are legally recognized in another state, they can pursue a divorce in Illinois as long as they demonstrate fulfillment of the legal prerequisites for common law marriage from the originating state.


When should unmarried couples in Illinois seek legal consultation?


Unmarried couples in Illinois should seek legal consultation when facing significant relationship changes or considering cohabitation agreements, marriage, custody, visitation, or child support issues.


It’s important to understand the legal consequences and required actions in these situations.

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