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Do We Need to Get Divorced to Have the Court Divide Our Property?

Do We Need to Get Divorced to Have the Court Divide Our Property?

By: M. Scott Gordon

There are many couples in the Chicago area that decide to live together in a committed relationship, but never get married (or legalize their relationship another way, such as through a civil union). When these couples break up—after years and sometimes even decades of being together—the battle over joint property can be contentious. Yet they are not getting divorced according to the law. In such situations, are these couples able to have a court divide joint property just as they would marital property in the event of a legal divorce? In short, the answer is no. An article in the Chicago Tribune explains why you must file for divorce in order to have a court decide who is entitled to what property.

History of Illinois’s Opposition to Common Law Marriage

As the article explains, the Illinois Supreme Court issued a ruling in 1979—more than 35 years ago—that clarified that the state did not recognize common law marriages, or marriages that exist, de facto, when committed couples live together as if they were married by law for a certain amount of time. Such “common law marriages” after 1905 are not recognized.  The case concerned a woman in a committed relationship who had lived with her partner, and even had had children with her partner. In her case, the woman wanted the court to distribute property from the relationship that was in the partner’s possession. The court, in short, said no.

What was its reasoning for refusing to recognize the doctrine of common law marriage that exists in other states? In 1979, the court’s aim, according to a later appellate court decision, was to “uphold a policy of discouraging cohabitation between unmarried parties and disfavoring non-marital children.”

Current Illinois Supreme Court Rulings on Property Distribution, Cohabitation, and the Need for Marriage and Divorce

Yet the Illinois Supreme Court has not changed its mind in the twenty-first century—at least not about the outcome of that earlier case. Toward the end of last summer, the court decided on a similar case in which one partner in a longtime relationship “sought part ownership of her longtime partner’s medical practice after the couple broke up.”

The Illinois Supreme Court emphasized that “societal norms and attitudes about unmarried people living together are far from what they were in the 1970s.” Indeed, according to Justice Lloyd Karmeier, “the court does not share the same concern or characterization of domestic partners who cohabit, nor do we condone such comparisons.” At the same time, however, the court ultimately came to the same conclusion it did in 1979.

Why did the court decide that it could not divide the property of a longtime, unmarried couple? The court emphasized that all persons in the state of Illinois, including same-sex couples, now have the right to marry. The court explained: “Since marriage is a legal relationship that all individuals may or may not enter into, Illinois does not act irrationally or discriminatorily in refusing to grant benefits and protections . . . to those who do not participate in the institution of marriage.”

In short, the guidelines for property distribution in divorce do not apply to unmarried couples. If you want the benefit of having the court divide your property under a theory of equitable distribution as it would in any divorce case, then you must get married and then file for divorce—or so the recent Illinois Supreme Court ruling suggests.

Contact a Chicago Divorce Lawyer

If you have questions about property distribution, a divorce attorney in Chicago can speak with you today. Contact M. Scott Gordon & Associates for more information.