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:
- Real Estate: If you own real estate together your agreement should address how the property will be divided if your relationship ends or if one of you were to die it is best to talk to a real estate attorney to make sure you include the necessary language that details exactly how you want this handled.
- Vehicles: Similar to real estate, vehicles are titled in someone’s name so make sure to address how this property is to be divided in the event your relationship ends.
- Personal Property: If there are specific things that are important to you such as collections or family heirlooms that should be detailed in the agreement so that you do not lose these things if your relationship ends.
- Debts: In the event you have joint debts such as credit cards, student loans or other unsecured debt you will want the agreement to detail how these debts are to be divided in the event your relationship ends.
- Pets: The law considers pets property so you will want to include what happens to the pets and the agreement should include details if someone brought the pet into the relationship or if you plan on acquiring a pet later you can add that as well.
- Health Care Directives: If your spouse becomes incapacitated you generally have the right to make decisions for them but if you are not married this may not be the case so you will want to address this and prepare the necessary legal documents to support these decisions such as a living will or power of attorney for health care.
- Children: If you are not married and have children you should address the issues of parenting responsibilities, holidays, travel, as well as other areas of importance such as high-risk activities and specific family situations.
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 & Marshall
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.