Whether for personal, religious, or pragmatic reasons, some couples choose not to officially “tie the knot.” Instead, these couples will cohabitate together – much as a husband and wife would – for long periods of time. When individuals of legal age and capacity cohabitate together for a number of years and hold themselves out to others to be husband and wife, some states conclude that the couple has a “common law marriage.”
Being declared to have a common-law marriage can have some advantages for the individuals involved if the relationship eventually deteriorates. For example, a couple that resides together but has not entered into a common-law marriage cannot ask a court to declare them divorced, divide property, or set a spousal support award. How does Illinois treat common-law marriages?
Common-Law Marriages Not Permitted in Illinois
Illinois, along with the majority of other states, does not permit residents to enter into common-law marriages. In fact, Illinois’ ban on common law marriage goes back nearly 110 years. For those who have lived in Illinois with their significant other, this means that no matter how long you and your partner have resided together or how you have represented yourself to the community, a divorce court in Illinois cannot:
- Declare you and your partner legally divorced;
- Determine what is marital property and what is separate property and divide the marital assets between you; or
- Decide whether spousal support is appropriate and if so, in what amount.
Instead, a court can only order that each partner returns to the other any property belonging to that partner, so long as each partner could prove who owned which pieces of property. A court can still decide child custody and child support issues and it can enforce any valid contract the partners entered into before the dissolution of the relationship.
What if My Partner and I Resided in a State Where Common Law Marriages Are Valid?
In our mobile society, it is not uncommon for a couple who would be considered common-law married under the laws of one state to move to Illinois. How does Illinois’ stance on common law marriage affect these individuals? Illinois will recognize a common-law marriage entered into in another state for purposes of a divorce proceeding so long as the couple can establish:
- That common-law marriage is recognized in that state and/or was recognized in the state at the time the couple met the requirements to be declared common law married;
- Both parties met the requirements to be considered common-law married; and
- The couple did not separate or divorce under the laws of any other state.
If one of the parties can establish these propositions, then an Illinois court is free to declare the couple legally divorced and divide their marital assets and establish spousal maintenance, if necessary.
Contact an Illinois Divorce Attorney for Assistance
Divorce law in Illinois can be complicated, especially when a couple has previously resided in a state other than Illinois. Speak with our experienced DuPage County divorce lawyers at (312) 584-6355 if you believe you were common law married in another state and are concerned about how to protect your rights in an Illinois divorce.