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Cohabiting Years Do Not Count as Part of Your Marriage

Posted on in Family Law

b2ap3_thumbnail_guardianship.jpgCouples who are considering marriage often move in together long before the wedding takes place. In many cases, a couple may even begin cohabiting before marriage is even seriously discussed. As cultural trends and social morals have evolved over the last few decades, the idea of living with a romantic partner prior to marriage is more commonly accepted than it once was. Moving in together before getting married, however, can also impact financial and property concerns, especially if the couple marries and eventually gets divorced.

Marital Property Defined

In the process of divorce, Illinois law requires a couple’s marital property to be divided equitably between the spouses. The law also provides a definition of marital property as any assets or debts acquired by either spouse during the marriage. Limited exceptions generally include property received as a gift or inheritance to one spouse. Property that was acquired before the marriage is non-marital property and will remain under the ownership of the spouse who acquired it.

Cohabitation Is Not Marriage

While many cohabiting couples see their arrangement as a sort of “practice run” for marriage, the law does not agree. Any assets or debts acquired by the couple while they are living together but before they get married are considered non-marital property under the law. This can create serious problems down the road, especially if there is a significant disparity between each partner’s income or if one partner stays home to care for the couple’s children.

Recent Appeals Court Ruling

The issue was recently highlighted in a ruling by the Illinois First District Court of Appeals regarding a Cook County couple who cohabited for more than a decade before deciding to get married. During the course of the cohabitation, the man accumulated substantial assets, including ownership of several profitable fast-food franchise locations. The couple married in late 2012 but filed for divorce in 2013.

During the divorce proceedings, the wife asked the court to consider the 13 years of cohabitation that she claimed were “not unlike a marriage” in making its decision regarding their marital property. She maintained that her partner would not have been able to accumulate such wealth without her support and contributions Both the trial court and, subsequently, the appeals court rejected her claims noting that Illinois law does not recognize common law marriage. The couple could have married at any point during their relationship, the court held. By choosing not do so, they forfeited the property rights afforded to married couples under the law.

Questions About Cohabitation?

If you are currently living with a romantic partner or are thinking about moving in together, an experienced Kane County family law attorney can assist you in protecting your rights. We can help you decide if a cohabitation agreement or another type of contract is appropriate for your situation. Call us at 847-426-1866 or 630-945-8807 for a confidential consultation at our law firm today.

 

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=0

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2016/1stDistrict/1151620.pdf

Kane County Bar Association Illinois State Bar Association McHenry County Bar Association

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