What is a cohabitation agreement? An agreement entered between two unmarried individuals who are involved in a romantic relationship and reside together in the same household.
The State of Illinois accords no relief for cohabitation under law whatsoever. This means cohabitants cannot assert legal and equitable claims by enforcing express or implied contracts between cohabitants, regardless of intent. In 1979 the Illinois Supreme Court held that Illinois public policy, as set forth in the state’s prohibition against common-law marriage precludes unmarried cohabitants from bringing claims against one another to enforce mutual property rights where those rights are rooted in a marriage-like relationship between the parties. This was reaffirmed by the Illinois Supreme Court in 2016, prior to the legalization of same sex marriage in Illinois, when the Court held that one member of a same-sex couple had no economic basis to be compensated through a constructive trust independent of her non-marital cohabitating relationship with the other party.
The purpose of a cohabitation agreement is to provide romantic parties with no intention of marrying with specific legal rights on issues such as property division, finances/assets, retirement accounts and the like in the event their relationship ends. Despite this intended purpose, in Illinois a cohabitation agreement must not mention the parties’ romantic relationship. As a result, nothing in the agreement is pursuant to the Illinois Marriage and Dissolution Act. All contracts require an offer, acceptance, and consideration to be exchanged in order to be enforceable and a cohabitation agreement is no different. Including a payment in exchange for upholding the contract satisfies this requirement.
Practical items that two unmarried people must resolve in the event of death, disability, or splitting up: property division, home payments, home ownership, retirement accounts, bank accounts, expenses, healthcare directives, etc. If you hold property together with a cohabitant, there are several options to consider for how to hold title to the property, which you should discuss with an experienced family law and estate planning attorney.
If unmarried cohabitants have children together, they may choose to enter into an agreement pursuant to the Illinois Parentage Act to address issues including who will reside in the family home with the children, allocation of decision making for religion, extracurricular activities, medical decisions, and education, and a parenting time schedule. Unmarried cohabitants can also enter into a comprehensive financial agreement regarding child support and contribution to children’s expenses and household expenses, life insurance to secure support, health insurance premiums, and out of pocket medical costs.
If you have questions about cohabitation agreements, or are ready to start the process, contact my office to schedule your free consultation today.
If you are living with your partner and wondering if a cohabitation agreement is for you, it is important to seek the advice of an experienced attorney. Contact me today to schedule your free 15 minute consultation.
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