Cohabitation Agreements In Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Cohabitation Agreements In Illinois

Cohabitation Agreements In Illinois

People are getting married a lot less but they’re living together as couples without being married. How can these couples memorialize their living arrangement? How can couples buy property together and later divide those purchases if they break up…all without actually getting married or divorced?

There should be a standard form, a cohabitation agreement that unmarried couples can enter into to formalize their lives as a couple beyond splitting checks and dividing the laundry duties.

There should be a legal agreement for unmarried couples…but in Illinois there is no such thing as a cohabitation agreement.

In Illinois, you cannot contract for a marriage-like agreement.

The Illinois Supreme Court stated as recently as 2016 that “[i]t is well settled that the policy of the Marriage and Dissolution Act gives the state a strong continuing interest in the institution of marriage and the ability to prevent marriage from becoming in effect a private contract terminable at will, by disfavoring the grant of mutually enforceable property rights to knowingly unmarried cohabitants.” Blumenthal v. Brewer, 2016 IL 118781

The Illinois Supreme Court warned that it has no intention of changing its mind until the Illinois legislature allows for such agreements.

“Until the legislature sees fit to change our interpretation of the public policy in Illinois [rights based on cohabitation of couples] contravenes the public policy implicit in the Marriage and Dissolution Act.” Blumenthal v. Brewer, 2016 IL 118781

The Illinois legislature probably will allow cohabitation agreements one day. Until then…cohabitation agreements are likely void and unenforceable in Illinois.

Other Contracts Between Couples In Illinois

Two strangers doing business together can enter into a contract to further a mutual goal.

Presumably, an unmarried couple can enter into a contract together to buy a house, a car, even split bills. But, they shouldn’t.

A contract between a couple that lives together, if interpreted as being a “work around” to actually getting married will likely be deemed void per the Blumenthal v. Brewer decision.

Therefore, no lawyer in Illinois should recommend a contract between unmarried couples. Cohabitation agreements are probably not binding to either party under the current law as set forth by the Supreme Court of Illinois.

There Is No Common Law Marriage In Illinois

In Illinois unmarried couples cannot invoke rights against each other simply because they’ve lived together for many years.

“Common law marriages contracted in this State after June 30, 1905 are invalid.” 750 ILCS 5/214

In Illinois, if you want to be married or have any benefits contractually from something that looks like marriage…you have to get married.

What Will Happen To Assets An Unmarried Couple Holds Jointly If They Can’t Contract With Each Other?

An unmarried couple is going to have to rely on the law should they separate and not agree as to how to split assets they own jointly.

Splitting assets absent a contract has been common throughout history (imagine brothers owning farms together). Actions to divide jointly held property not subject to a prior contract are called “partition actions.” 

“When lands, tenements, or hereditaments are held in joint tenancy or tenancy in common or other form of co-ownership and regardless of whether any or all of the claimants are minors or adults, any one or more of the persons interested therein may compel a partition” 735 ILCS 5/17-101

Partition actions are NOT handled in the Illinois domestic relations courts. In Cook County, they are typically handled in civil courts based on the value of the asset in controversy.

“[A] small claim is a civil action based on either tort or contract for money not in excess of $10,000” Ill. Sup. Ct. R. 281(a)

“Municipal District One hears civil actions and proceedings at law seeking compensatory and consequential money damages not in excess of $30,000, actions for the recovery of property of a value not in excess of $30,000

Municipal Districts Two, Three, Four, Five and Six hear civil actions and proceedings at law seeking compensatory and consequential money damages not in excess of $100,000, actions for the recovery of property of a value not in excess of $100,000” Cook County GENERAL ORDER NO. 1.2,2.3 – Municipal Department

If the property in controversy has a value in excess of $ 100,000, the case will be heard in Law Division.

Each level has varying degrees of enforcement and discovery requirements based on the weight and complexity of the case which is presumed from the value of the property in controversy.

A partition action is not especially different from the division of assets in a divorce. The civil court will consider all of the facts and “enter further judgment fairly and impartially dividing the premises among the parties” 750 ILCS 5/17-105.

Because there are no valid contracts between unmarried cohabitating people, the court will simply divide the property based on fairness with little discussion as to what was agreed or not.  

A Final Word About Cohabitation Agreements In Illinois

I have been contacted by many people asking for a “cohabitation agreement.”

After explaining that no such thing exists or can exist, I also turned to google only to find that dozens of Illinois lawyers have articles on their websites about this non-existent concept: the cohabitation agreement.

Why would a lawyer write about a legal concept that doesn’t exist?

They don’t. These lawyers pay marketing firms to create content for their websites. The marketing firm researches what people google and then writes an article about the subject matter. The writers are presumably not lawyers and you can tell BECAUSE THEY NEVER CITE THE LAW.

There’s nothing wrong with a non-lawyer writing about the law. There’s nothing wrong with lawyers posting content on their websites to educate the public. The problem is that the information is wrong.

The subject of cohabitation agreements is tricky. Cohabitation agreements seem like they should exist. Cohabitation agreements exist in other states. Cohabitation agreements don’t contravene Illinois contract law. Cohabitation agreements look a lot like prenuptial and antenuptial agreements which are valid in Illinois. The issue is that there is no place in the Illinois statutes or even the case law that says “cohabitation agreements are void.” Rather, the inference from a Supreme Court decision that was primarily about same-sex marriage makes cohabitation agreements likely void. An Illinois divorce lawyer should know subtle yet powerful rulings like this.

If you’re considering a cohabitation agreement in Illinois, you now know that you’re no longer considering a cohabitation agreement. You need to make some tough choices and be prepared whether you get married or not. If you have any other questions that you want answers to contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.