Rarely do unmarried partners think to put anything in writing to help them unwind their financial entanglements if, or when, the end comes. Learn how to protect your rights.
It is more and more common for people to live together without getting married. Whatever the reasons, people are increasingly choosing to avoid the formalities of a civil union or marriage and are living together in committed partnerships. As time goes by, trust invariably builds and their financial circumstances improve. Comfort levels rise and investments are made in their relationship. Houses and vehicles are purchased. Bank accounts are jointly opened. And, perhaps even children are born and raised with the corresponding sacrifice of one person’s career. But nothing is in writing.
When contemplating marriage or civil union, couples can soften the impact of a potential future divorce by using a prenuptial agreement. Even during a marriage or civil union, parties can work out terms of a future divorce by using a post-nuptial agreement. Rarely, however, do unmarried partners think to put anything in writing to help them unwind their financial entanglements if, or when, the end comes.
What happens to an unmarried, cohabitating couple’s shared assets if one day, one of the partners decides they have had enough and want to move on? Perhaps there is infidelity. Or worse, domestic violence occurs. Or, maybe the couple have just grown irreconcilably apart. Without a written agreement, the process of dividing the assets they worked so hard to accumulate together can be very difficult, and in some instances, impossible.
Rights of unmarried cohabitants are not protected by Illinois law
Illinois law does not recognize the concept of common-law marriage. In states where common-law marriage is recognized, the rights of married persons are extended to the couple on their separation. Not so in Illinois. What this means is that the rules allowing for maintenance, property division, and accountability for secreted assets are not available to unmarried cohabitants.
Recently, legislation has been proposed to extend rights of married persons to unmarried cohabitants. However, the likelihood of such legislation passing in the near future is unlikely.
So, what should unmarried persons and people not in civil unions do to protect their investments when they decide to share common living expenses and incomes? For complicated reasons, certain assets or income cannot be recouped by unmarried partners. (While these issues are beyond the scope of this article, you are invited to contact LSR Family Law Group to begin this conversation.)
For now, let’s focus on a few simple strategies that could protect your investments of time and money and increase the chances you will exit the partnership with some of what you invested.
Start with these strategies to protect your rights
Partnership Agreement: A written agreement defining the relationship as a partnership would be enforceable. This document specifies how to define partnership assets and provides for reimbursement or liquidation rights of partners. Of course, a case may need to be filed to enforce the agreement documents, but the agreement could also include a term requiring the party violating the agreement to pay attorney’s fees incurred by the other.
Titling of Assets: If property is to be acquired, its ownership is proven by a registered document (e.g., car title, deed to land, stock certificate). Be sure to have both partners’ names listed as co-tenants on the registration document. If possible, have the nature of title reflect a tenants-in-common form of ownership, as opposed to joint tenants. Again, a suit may have to be filed to force the division, but co-ownership is provable.
VAP and Adoption: A biological father can sign a voluntary acknowledgement of paternity (VAP) at the child’s birth. For same-sex couples, adoption of a child by the non-biological parent at the time of the child’s birth (or at least prior to relationship breakdown) protects against a later challenge to parenting rights.
If you are in a domestic partnership relationship and want to protect your investment of time or money, don’t wait for what you think will be a more opportune moment to act. The more time that passes, the greater the need for planning. Until legislation is approved extending marital rights to unmarried domestic partners, it is up to the partners to act to protect themselves. Contact Steve Rakowski to discuss all legal options to secure your rights. Reach out to admin@lsrfamilylaw.com or 847-412-9950.