Non-Marital Cohabitation: Rights and Liabilities
Through to June of 2024, Illinois has not recognized “palimony.” But Illinois appears likely to the first state to adopt the Uniform Cohabitants Economic Remedies Act based on House Bill 4404 passed by the House and now engrossed in the Illinois Senate. This law would allow a current or former cohabitant to commence an action based upon a “contractual or equitable claim” stemming from contributions to the relationship. It even would allow an action to be commenced on behalf or against someone who died. The bill would allow a cohabitant to bring an equitable action seeking entitlement to property based upon contributions to the relationship. The law would apply to agreements made on or after the effective date of the proposed law.
Both the Illinois Chapter of the American Academy of Matrimonial Lawyers and the ISBA Family Law Section have recently voted against this legislation. In essence it would provide more potential rights to non-married couples as compared to couples who choose to live together without the benefit of marriage. And the further problem is that we can anticipate this law to provide a nightmare when cases are litigated because it provides various remedies. But it does not define now the court is to fashion equitable relief.
Didn’t we do away with the old-fashioned rules that adultery and fornication are crimes?
No. “Open and notorious” adultery and fornication are still on the books as misdemeanors. This is inconsistent, however, with Illinois divorce law removing the ability in 2016 even to use grounds of adultery in order to obtain a divorce. The law, however, has found it difficult to define what is open and notorious. As written by H. Joseph Gitlin, “The fact is that in my 52 years of practice in McHenry County, I do not recall anyone being prosecuted for adultery or fornication.”
When non-marital cohabitation ends can one party successfully sue the other for alimony?
No. The California “palimony” case grabbed headlines in the early 1970’s. It involved Hollywood actor, Lee Marvin, being sued by his non-marital companion of 7 years, Michelle. In Marvin the California high court found that the parties made an actual oral contract which could be enforced and thus that Michelle could recover money from Lee Marvin based on the agreement they made.
A few years later, in 1978, Illinois had its own mini-Marvin case. The Illinois Appellate Court ruled that Illinois, contrary to California, will not award “palimony.”
What happens if the cohabiting party buys real estate in co-ownership (joint tenancy, etc.)?
Illinois courts treat jointly owned property by any two people. One of the parties can sue to have the property sold and proceeds divided.
How is personal property (household goods etc.) divided if a cohabiting couple splits?
As of May 2024, Illinois has not yet adopted rules that apply which to non-marital cohabitants, whether heterosexual or gay/lesbian. Logically, each cohabitant should take what they brought into the relationship and what they acquire together should be divided on a fair basis. Where a cohabiting arrangement is in every aspect like a marriage, but it was not formalized by marriage, would the divorce laws apply to dissolution of the non-marital relationship?
Not yet. All of this may be impacted by the Uniform Cohabitants Economic Remedies Act if and when enacted in Illinois.
When non-marital cohabitants have a child, does putting the father’s name on the birth certificate, with the father’s approval, prove that he is, as a matter of law, the father?
No. The name on the birth certificate does not prove paternity. In Illinois we establish paternity by a court action under the Parentage Act or by the parents signing and having witnessed the voluntary acknowledgment form as required by law. Often hospitals will have these forms and these forms can be obtained from the Clerk of the Circuit Court. See: Parentage / Paternity in Illinois | The Gitlin Law Firm.
Is it wise for a non-marital couple to have a written agreement establishing what their relationship will be and what will happen in the event they break up?
Yes. This is especially true if and when Illinois might adopt the misguided Cohabitants Economic Remedies Act. It would be even more important for a non-married couple to enter into an agreement that would operate much like a premarital agreement. Yet the problem is that neither a premarital agreement, nor a non-marital agreement is romantic. But if and when the relationship stops being romantic an agreement becomes very useful.
What are the problems with the Proposed Law that would affect couples who live together?
The key problem with the Cohabitants Economic Remedies Act is that human nature indicates that few people will enter into an agreement defining what will occur if their relationship breaks up. People live together in order to avoid the legal implications that go along with marriage. And if Illinois passes this law, there will be legal implications arising from the relationship based merely on equitable claims that will be extraordinarily difficult to quantify. Compare that to Illinois divorce law that has evolved a period of nearly 200 years (since Illinois became a state in 1819). In fact, Abraham Lincoln represented more than 120 litigants in divorce cases in his 25 years of practice. So, while we have had this time frame to refine the law that applies to divorce cases, we will open Pandora’s Box to potential litigaton involving non-marital claims for property and otherwise.
If a non-marital couple cohabits for a number of years and then marries, in the event of a divorce will the length of the non-marital cohabitation be added to the years of marriage for “seniority rights” in the divorce?
Not at this time. Marital property rights start only after the marriage and the right to maintenance (alimony) is also measured in terms of the start of the marriage, and not the start of the cohabitation. The marriage does, however, legitimize any child born to the parties before the marriage.
But if and when Illin
