Illinois Supreme Court to Reconsider Property Division for Cohabitation

Women with Child

The Illinois Supreme Court recently agreed to hear an appeal in a case that could have major ramifications for cohabiting couples in Illinois. At present, courts in Illinois do not get involved in property division in instances where an unmarried couple who was living together ends their relationship. This rule flows from a case decided in the late 1970s, Hewitt v. Hewitt, that was decided on grounds of public policy more than legal principles. However, the cultural landscape surrounding cohabitation has changed considerably from the late 70s, and it has become much more common.

The Current Law

The Hewitt court decided that courts would not get involved in the property division of cohabiting couples based on what the Illinois Supreme Court believed was the legislatures public policy decision to encourage people to marry. It is important to note here that when the Court decided Hewitt, Illinois law was considerably more hostile to cohabitation and focused much more on encouraging and preserving marriage. In fact, the law actually criminalized non-marital cohabitation.

Beyond that, there were also other legal ways that the legislature was attempting to encourage marriage such as a lack of no-fault divorce. Many of the policies on which the Court based Hewitt have been repealed. The one exception to this is that Illinois still does not recognize common law marriages, which proponents of the Hewitt rule consider to be a key legislative decision that overturning Hewitt would partially invalidate.

The New Case

In order to reconsider the Hewitt rule, the Court agreed to hear the case of Blumenthal v. Brewer. The case centers around a same-sex couple who began living together in the early 1980s. They lived together for about 25 years, and functioned as a married couple in a practical sense. They had three children, registered their domestic partnership, and jointly took care of family responsibilities. Eventually, the couple separated, and one member of the couple made a legal claim on the earnings of the other.

Although the party making the claim lost at trial, the appellate court reversed that decision, holding that the principles behind Hewitt were 35 years old and were no longer in effect. The court also made the point that although the Hewitt rule was designed to encourage marriage, it may actually have the opposite effect. The lack of property division in cases of cohabitation could encourage couples with a large difference in assets to simply avoid marriage in order to protect their finances in the case of divorce. The Illinois Supreme Court will now review this decision to determine whether to allow it to stand.

Family law is constantly changing, and an experienced practitioner can help guide you through the system. If you are considering filing for divorce and to learn more, contact a skilled Naperville divorce lawyer today.

Related Posts
  • How To Protect Assets in Divorce Read More
  • Getting Divorced? Here is How You Should Handle Things at Work Read More
  • Are Babyboomers Still Pushing Up Divorce Rates? Read More