Although most adults will live in at least one marriage-type relationship without exchanging nuptial vows or obtaining a license, the Illinois Supreme Court recently finalized its decision that the partners in these relationships have no legal right to jointly-owned or operated property.
On October 20, the court denied rehearing in Blumenthal v. Brewer, effectively ending the dispute between the parties. The two women had been domestic partners since 1981 and jointly owned a residence in Chicago. When the two separated, Judge Brewer asked for partition of the residence and also a share of Dr. Blumenthal’s medical practice. Relying on the landmark Hewitt v. Hewitt decision, the 1979 case in which the Illinois Supreme Court initially said that non-married partners had no property rights, the trial judge dismissed the action. An appeals court later overturned that decision, calling Hewitt an “outmoded and ill-considered” case.
In a split decision, the Justices reinstated Hewitt. Chief Justice Lloyd Karmeier wrote that to hold otherwise would “encourage formation of such relationships and weaken marriage as the foundation of our family-based society.” However, the court was deeply divided. Justice Theis filed a partial dissent that sharply criticized Hewitt, because it “etched into the Illinois Reports the arcane view that domestic partners who choose to cohabit, but not marry, are engaged in ‘illicit’ or ‘meretricious’ [of or relating to a prostitute] behavior at odds with foundational values of ‘our family-based society.’”
Informal Marriage
As for couples who are not legally married, Illinois does not recognize “common-law” marriages for any purpose, unless the informal spouses married in another state and subsequently relocated to the Prairie State. In 2011, the Illinois Civil Union Act took effect, but this domestic partnership law only awarded child custody and property rights to couples that obtained a legally-recognized union under this law. Moreover, now that the United States Supreme Court has legalized same-sex marriage, this law is probably moot. So, Blumenthal is most likely the controlling authority in these matters.
Property Division in Illinois
With regard to married couples, the Illinois Marriage and Dissolution of Marriage Act requires “equitable” property division, and that may not be an “equal” division. The underlying idea is that the divorce must not be an unfair financial burden for either spouse. To equitably divide property, the court looks to a number of factors, including:
- Marital Contributions: Economic contributions as a “breadwinner” and noneconomic contributions as a “homemaker” count equally, regardless of which spouse filled what role and to what extent their roles overlapped.
- Duration of the Marriage: Longer marriages multiply the “homemaker” contributions, while shorter marriages convey fewer property rights on these spouses.
- Child Custody Provisions: It is typically in the children’s best interests that they remain in the family home, and this arrangement must be economically sustainable for the spouse with primary custody.
- Spousal Agreements: Family law judges in Illinois almost always uphold agreements between the spouses unless they are manifestly unfair or clearly involuntary.
Future earning potential is another key factor because statistically, women have a harder time recouping wealth after divorce than men. Other factors include tax implications, alimony provisions, and any non-marital property award.
Count on Experienced Lawyers
Divorcing spouses have both legal and financial rights. For a free consultation with an assertive family law attorney in Schaumburg, contact Glasgow & Olsson. We routinely handle matters throughout Chicagoland.
(image courtesy of Alanscottwalker)