Unmarried couples and property division

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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Unmarried Couples and Dividing Property In Illinois

Unmarried couples and property division

People are getting married a lot less lately….or at least getting married a lot later. It’s not uncommon for unmarried couples to not only live together but to buy homes together.  What happens when an unmarried couple buys a property and then breaks up? Does either party have a claim to the property they bought together or property they  bought individually while they were not married to each other? What are the rights of unmarried couples in Illinois?

Illinois law treats property acquired by people who are married as marital property.  That is, if two people get married and then earn and keep some asset, property or money, that asset, property or money will be divided equitably between them both.

If you’re not married, the Illinois statute doesn’t say anything. So the presumption is that whoever has the property in their name or possession gets to keep that property in their name or possession.  The Illinois statute treats Illinois unmarried couples and their property the same way it would treat two strangers or two close friends and their property…as completely separate non-joint parties.

You’re Not Married Until You’re Married.

When the Illinois statute doesn’t say something or the Illinois statute is outdated or contextually wrong, the Illinois courts can step in and make a ruling that defies the statute. But, they rarely do.

One particular Illinois supreme court case underscores how Illinois is so committed to keeping a strict distinction between the married and the unmarried.

Two women, Ms. Brewer and Ms. Blumenthal, lived as a married couple for years.  They clearly would have been married had it been legal to enter into a same-sex relationship. They lived together. They had children together. When civil unions finally became legal in Illinois, the two women immediately entered into a civil union.  If any unmarried couple had the right to have their property declared as “marital” and thus be divisible between the two, it was Ms. Brewer and Ms. Blumenthal.

The Illinois Supreme Court was not moved by their story. “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 under the Marriage and Dissolution Act to those who do not participate in the institution of marriage.” Blumenthal v. Brewer, 69 NE 3d 834 – Ill: Supreme Court 2016

So, now that you know that it is essentially impossible to divide property in the Illinois divorce courts how do you divide property between unmarried couples?

Contracts Can Divide Property Between Unmarried Couples. 

When two people who aren’t in a romantic relationship enter into some kind of financial venture, buying property, starting a business, etc, the two people usually enter into a  written contract with each other about how they’re going to conduct themselves when buying, holding onto and finally selling that property.

Couples in a relationship rarely enter into contracts such as these but, if they do, the contracts will be held as binding.

If a couple did not enter into a formal written contract regarding property, they probably entered into an oral contract about what they’re going to do such as “We’re going to buy this house and each pay half of the mortgage.”  What’s more, there’s probably lots of evidence of that agreement such as text messages, emails, and checks written on behalf of each party.

An oral contract is binding.  An oral contract has two downsides: 1) You cannot orally contract for some things and 2) Oral contracts are harder to prove.

For example, In Illinois, agreements regarding real estate are not binding unless they are in writing.  740 ILCS 80/2

An oral contract is usually proven by whether either party acted on it. For example, if one person paid the down payment on a house while the other paid the mortgage alone for over a year, it would be pretty clear that they clearly had some kind of agreement regarding the property.

What’s more the parties may be able to get around the rule about having a written agreement by having an agreement by estoppel.  This funny word, “estoppel” harkens back to the days when two parties would come to agreements without the help of contracts or lawyers.  If both people did something in detriment to themselves in reliance of the other person’s agreement…then you have a deal.  For example, if one party bought a car and the other party paid the insurance, gas, and maintenance, then each party has done something hard, difficult or unpleasant to further the unwritten contract (they each spent money and effort).  Therefore, it could be argued that they now own the car together.

Estoppel is a tough argument.  It’s not going to be enough to say, “He may have bought the house but I raised his children” if you’re not married.  The reliance has to be directly related to the property.

Property Held In Both Unmarried Couples’ Names.

The more common situation is when a house, home or property is held in both parties’ names.  Most couples are happy to sell the property and split the proceeds as a real estate attorney will hold their property in escrow and distribute it only when the two parties are in agreement.

Splitting up property held in both parties’ names becomes a problem when one party does not want to move from that property. Who gets the house when an unmarried couple splits up in Illinois?

If one party stays in the property, you may want to force the sale of the property to get your name off of the property or you may want to let your former partner stay in the property and reduce the mortgage and increase the equity over the years.  However, sooner or later, the property will have to be divided.

Dividing a property between unmarried couples does not happen in the domestic relations division.  In Cook County, property gets divided between the unmarried in the Chancery division. This legal action is called a partition proceeding.

In a partition proceeding, the legal action is filed in the county where the property is located.  The written legal action, the complaint, must “particularly describe the premises sought to be divided, and shall set forth the interests of all parties interested therein, so far as the same are known to the plaintiffs, including tenants for years or for life, and of all persons entitled to the reversion, remainder or inheritance, and of every person who, upon any contingency, may be or become entitled to any beneficial interest in the premises, so far as the same are known to the plaintiffs, and shall ask for the division and partition of the premises according to the respective rights of the parties interested therein, or, if a division and partition of the same cannot be made without manifest prejudice to the owners, that a sale thereof be made and the proceeds divided according to the respective rights of the parties.” 735 ILCS 5/17-102.

So, in an Illinois partition proceeding, you explain the property to the court, you explain everyone’s interest in the property and the court almost always orders the sale of the property and allocates the proceeds to each party based on their interest.

Divorce lawyers seem to get involved in partition proceedings in Chicago, Illinois even though it’s not our usual division.  Often, family law attorneys simply act as mediators, I have often said “we can sell this property and divide it 50/50, 55/45 or 60/40, or we can file a partition proceeding in Chancery and the same result will ensue.“  Then the family law lawyer prepares a quick contract of the new agreement for proceeds of the sale and forwards that contract to the real estate attorney who will distribute those proceeds.

Gifts

One thing that happens in romantic relationships a lot is that the two parties give each other gifts.  You can’t get your gifts back if you’re unmarried.  Whoever has the item in their name or possession gets to keep that gift.

If the gift is not in your name or possession, it should be pretty obvious who the gift belongs to.  Jewelry and women’s items will often belong to the female member of the couple.  Failing strictly sexual identification of objects, there’s usually a card, text or email that identifies who was the recipient of a gift.

What If We Had Kids Together?

If you and your former partner had children together, you can use the Illinois domestic relations courts to resolve those issues regarding your children.  The financial issues regarding your children will all be fair game: child support, medical expenses, extracurricular expenses and college expenses.

You still cannot divide property between you and your former partner in the domestic relations courts if you were unmarried with children…unless you agree to it.

When you have children together and you resolve anything through the courts you are required to enter into an Allocation Of Parenting Time And Parenting Responsibilities.

For married people, the Allocation of Parenting Time And Parenting Responsibilities typically contains no mention of anything financial.   All financial matters including child support and child expenses are typically included in the Marital Settlement Agreement for divorcing couples.

For couples who were never married and, therefore, never divorced, everything gets squeezed into the Allocation Of Parenting Time And Parenting Responsibilities.  So, if you have some kind of agreement regarding the partition of your shared or unshared assets you can simply put that part of the agreement in the Allocation Of Parenting Time and Parenting Responsibilities.

If one parent decides not to follow the division of assets in an Allocation of Parenting Time and Parenting Responsibilities, they will have a very hard time convincing the court that a binding order is not binding just because the title of the document doesn’t fit the contents.

Palimony in Illinois 

A final word needs to be added on how Illinois handles the concept of palimony for unmarried couples. Palimony is a term similar to alimony and support that is paid to a partner in a dissolved unmarried relationship.

While palimony is recognized in some states, palimony does not exist in Illinois.

So, not only do you not get to divide any property if you’re unmarried, you can’t ask for any support either.

If you’d like to learn more about your options regarding your assets and your unmarried boyfriend or girlfriend, contact my Chicago family law office for a free consultation with an experienced Chicago family law attorney.