A cohabitation agreement is an agreement or contract entered into between two people living together in the same household who are in a romantic relationship but not married. With more millennial couples choosing to live together, whether planning to marry or not, commingling property can get complicated in the event the relationship ends. A pre-nuptial agreement – or prenup – is an agreement or contract entered into by two people who are getting married. For prenups, the agreement is only valid in the event the marriage actually takes place. Cohabitation Agreements in Illinois Cohabitation agreements are not very common in Illinois due to an Illinois Supreme Court case in 1979, Hewitt v. Hewitt. In the Hewitt case, the Illinois Supreme Court held that the courts cannot resolve a property dispute between unmarried couples. Victoria Hewitt lived with Robert Hewitt from 1960 until 1975 in a family-like relationship, they had three children but were never married. Virginia filed a suit asking the court for her share of the property accumulated during the time they were together. The Court held that Victoria’s claims were unenforceable because they contravene the public policy implicit in the Illinois Marriage and Dissolution of Marriage Act disfavoring the grant of mutually enforceable property rights to knowingly unmarried cohabitants. Since the Supreme Court made this statement in 1979 it was understood that unmarried couples in a married-like situation without marriage were not going to be able to get the relief in Court that you would get if you were married. In 2016 the Illinois Supreme Court took a case involving a property dispute between same-sex partners, Blumenthal v Brewer. Similar to Hewitt in that they had been in a long-term relationship without the benefit of marriage and asked for the court to resolve a property dispute. Blumenthal and Brewer had been domestic partners since 1981 and jointly owned a Chicago home. In 2010 the relationship ended and Blumenthal asked the court to partition (divide) the residence and Brewer counterclaimed for a share of Blumenthal’s ownership in a business so that their assets would be equalized upon separation. Blumenthal asked the Court to apply the rationale of the Hewitt case which denied the division because they were never married. Brewer argued that it was “particularly irrational” to apply Hewitt because she and Blumenthal could not marry because same-sex marriage was not recognized in Illinois. Again, the Illinois Supreme Court made it clear that the legislature intended marriage to be the only legally protected family relationship under Illinois law. Permitting unmarried partners to enforce mutual property rights might “encourage the formation of such relationships and weaken marriage as the foundation of our family-based society.” 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 under the Marriage and Dissolution Act to those who do not participate in that institution. Cohabitation Agreements Protect Property Everyone has personal property of some kind. It could be a large asset like a house or it could be a television set or a pet. If you have a partner you have likely shared this property with that partner. If you break up, deciding how to divide that property without a cohabitation agreement can be very difficult so if you are going to live with someone and share property it is best to have an agreement in writing. Illinois has laws that address how to divide property but if you are not married the divorce law cannot help you divide the property. You have to count on a civil court to enforce a cohabitation agreement under civil contract law. While not as common, cohabitation agreements can be very effective in avoiding property disputes if your relationship breaks up. What to Include In Your Cohabitation Agreement When it comes to creating a cohabitation agreement, the agreement should address:
Although they are not common and not enforceable in divorce court because the law does not give you the same rights as a married couple, you should protect yourself as best you can by having a cohabitation agreement in place. It is too late to do this when something goes wrong so think about it when things are good and you can discuss these topics in a calm rational way. Thinking About a Cohabitation Agreement in Chicago? Consult Anderson & Boback If you are thinking about moving in with your significant other, a cohabitation agreement can save you headaches down the road. Be sure to have it drafted by an attorney experienced with these types of agreements, both of you sign it, and keep it tucked away in the event you need it. If you are in the Chicagoland area, feel free to schedule a consultation with one of our divorce attorneys to discuss a cohabitation agreement. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/cohabitation-agreements-and-what-millennials-need-to-know/
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