As a new generation of twenty-something’s reaches marriage age; more and more couples are opting to live together and either delay or entirely forego that long trip down the aisle. This is not surprising considering that many of today’s young adults carry deep wounds from a record high divorce rate that plagued their parents’ generation in the 1980’s and 90’s.

In an attempt to avoid becoming part of a divorce statistic, it is possible that young couples avoid marriage in order to avoid divorce. Unfortunately, the legal consequences of a breakup for unmarried couples can actually be far worse than the legal consequences of divorce.

The most effective way to gain the legal benefits of marriage is by getting married, but same-sex couples are denied the legal right to marry in Illinois, and many heterosexual couples are resistant to marriage. Thus, there are steps that Illinois attorneys can take to ensure that cohabiting couples receive most of the legal benefits of marriage.

The legal disadvantages of cohabitation

When a married couple divorces, each person is generally entitled to 50% of all assets attained during marriage. Co-habiting couples, on the other hand, do not have the luxury of a legal formula to determine what happens to all of their assets when they break up. For example, when a married couple buys a car, only one person’s name is on the title, but courts recognize that each person has equal ownership of it, whereas courts would give 100% ownership of a co-habiting couple’s car to the title holder. There is no assumption that a co-habiting couple’s assets are jointly owned, and neither person is entitled to anything that they did not specifically pay for or gain title to.

The 1970 lawsuit of Hewitt v. Hewitt, 77 Ill 2d 49, 394 NE2d 1204 (1979), is the most recent Illinois Supreme Court case involving the division of assets between non-married cohabitants. The Hewitt’s lived together outside of marriage, but Ms. Hewitt changed her name and the couple presented themselves as husband and wife. The couple agreed that Mr. Hewitt would be the primary wage earner while Ms. Hewitt fulfilled all other tasks involved in maintaining the household. When the couple broke up, the Illinois Supreme Court decided that because Mr. Hewitt supported the household financially, Ms. Hewitt had no right to any of the couples’ assets.

If the facts in the Hewitt case were different, and instead of breaking up, Mr. Hewitt died, technically, the result would have been the same. Ms. Hewitt could have been served with an eviction notice from Mr. Hewitt’s relatives and been forced to leave her home.

Cohabitation is considered socially undesirable in Illinois, and thus far, courts have not gone out of their way to extend the benefits of marriage to cohabitants. Because the result of breakups and death among cohabiting couples can be unfair, it is important for unmarried couples to hire attorneys and secure the legal benefits of marriage.

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