It has been a source of confusion to the older generation that many young people in the United States have chosen either to not marry or to wait on marriage until later in life. It is true that there are some advantages to marrying aside from the obvious ones, such as streamlined tax preparation, but for many, there are perks to remaining single. Besides, many argue that they can obtain the best of both worlds via cohabitation, as long as an appropriate cohabitation agreement is signed and executed, so that both partners’ assets and rights are protected.
Do I Need A Cohabitation Agreement?
Not every cohabitating couple needs an agreement. Some do quite well without any kind of legal documentation of their relationship. The tradeoff, however, is that no assets of any kind may commingle, and one has no legal recourse regarding their partner’s assets if they predecease the other. Illinois does not recognize cohabitating couples as having any kind of legal relationship unless they have a valid cohabitation agreement. While being married may not be a couple’s first choice, if they want any legal rights to the fruits of their relationship, they must take definitive action.
Many Illinois couples that choose to cohabitate do, in fact, execute a cohabitation agreement, because certain common situations affect many of them. Examples include owning real property together (in both parties’ names), having children and wanting to set down parental roles in writing, and estate planning needs such as naming one’s partner as executor. Since many of these situations are covered in statutory law when it comes to married couples, a couple that prefers to cohabitate must specifically delineate them in their agreement.
Be Careful Not to Lose Your Spousal Support
One major potential pitfall regarding cohabitation is that under Illinois law, a person who is cohabiting with someone else (not necessarily in a romantic fashion) after a divorce may be deemed to be receiving support from them. This determination terminates any spousal support that the person was being paid as a result of the divorce.
The key phrase in the relevant law is that a cohabitation will likely be found to exist if the two people are living together on a “resident, continuing, conjugal basis.” If two people are not living together, there is no cohabitation. If the two people live together only sporadically, there is no cohabitation. Keep in mind that the word “conjugal” has several definitions, and whether or not it applies in any given case is usually decided specifically for that case. Certain actions like sharing bank accounts and other finances, taking vacations together or naming each other on insurance policies or wills generally tip most courts toward deciding in favor of cohabitation, but each situation is different.
Have Questions About Cohabitation?
Relatively few couples chose to cohabitate instead of marry until perhaps the last decade or so, but the trend continues to rise. If you and your partner have chosen to cohabitate rather than wed, it is important to ensure your assets and legal rights are protected. Our dedicated DuPage County cohabitation attorneys can sit down with you and help answer your questions. Call us today to set up an appointment.