Common Law Marriage: Spousal Maintenance and Property Division

One important issue that comes up when a couple goes through a divorce is the question of spousal support and property division. Generally, if a spouse meets certain factors under Illinois law, a court is likely to award spousal support and equitably divide the marital property. However, in cases where two people have been cohabiting for years, but never married, even if one of the people meets the factors for spousal support, it may not be awarded. This is because Illinois law does not permit common law marriages.

There are many reasons why some people prefer never to get married in an official ceremony and obtain a marriage certificate and instead choose common law marriage. Common law marriages usually happen when two people live together for an extended period of time while representing themselves as a married couple to others. Common law marriages are legally different from civil unions and domestic partnerships. There are only a handful of states in the country that permit common law marriages, and each state may have its own unique requirements that may apply in order for a common law marriage to be valid in those states.

In states that permit common law marriages, a court may preside over the dissolution of the common law marriage in much the same way it would the dissolution of a formalized marriage. In Illinois however, cohabitation without marriage can limit the actions a court can take when two people are no longer together. Specifically, courts cannot look at the period of cohabitation as being a valid marriage that entitles the couple to have issues of property division and maintenance decided by an Illinois court.

An exception exists if a couple established the common law marriage in a state that recognizes common law marriages. In that case, if the couple now lives in Illinois, an Illinois court can preside over the couple’s division of property and award spousal maintenance if it is warranted. The couple will have to meet the residency requirements for filing for dissolution of marriage in Illinois.

In deciding whether to recognize a common law marriage from another state, an Illinois court may evaluate whether the couple pursued a common law marriage in the other state in order to avoid the Illinois ban on common law marriage. If the couple tried to circumvent Illinois law, a court may not rule on the couple’s claims, including a petition for spousal support.

Contact Us for Legal Assistance

If you are separating from your spouse or seeking to dissolve a common law marriage that was entered into in a state that recognizes common law marriage, you need an experienced divorce attorney representing your interests. For more information on spousal maintenance and other divorce issues, contact the passionate Naperville divorce attorneys at the Roscich & Martel Law Firm, LLC for a consultation.


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