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NON-MARITAL COHABITATION: RIGHTS AND LIABILITIES |
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Didn't we do away with the old fashioned rules that adultery and fornication are crimes? |
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When non-marital cohabitation ends can one party successfully sue the other for alimony? |
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What happens if the cohabiting party buys real estate in co-ownership (joint tenancy etc.)? |
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How is personal property (household goods etc.) divided if a cohabiting couple splits? |
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Where a cohabiting arrangement is in every aspect like a marriage, but it was not formalized by marriage would the divorce laws apply to dissolution of the non-marital relationship? |
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When non-marital cohabitants have a child, does putting the father's name on the birth certificate, with the father's approval, prove that he is, as a matter of law, the father? |
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Is it wise for a non-marital couple to have a written agreement establishing what their relationship will be and what will happen in the event they break up? |
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If a non-marital couple cohabits for a number of years and then marries, in the event of a divorce will the length of the non-marital cohabitation be added to the years of marriage for "seniority rights" in the divorce? |
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| Q: |
Didn't we do away with the old fashioned rules that adultery and fornication are crimes? |
| A: |
No. "Open and notorious" adultery and fornication are still on the books as misdemeanors. The law, however, has found it difficult to define what is open and notorious. The fact is that in my 41 years of practice in McHenry County I do not recall anyone being prosecuted for adultery or fornication. |
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| Q: |
When non-marital cohabitation ends can one party successfully sue the other for alimony? |
| A: |
No. The California "palimony" case which grabbed headlines in the early 1970's involved Hollywood actor, Lee Marvin, being sued by his non-marital companion of 7 years, Michelle. In Marvin the California high court found that the parties made an actual oral contract which could be enforced and thus that Michelle could recover money from Lee Marvin in accordance to the agreement they made. A few years later, in 1978, Illinois had its own mini- Marvin case. The Illinois Appellate Court ruled that Illinois , contrary to California , will not award "palimony." |
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| Q: |
What happens if the cohabiting party buys real estate in co-ownership (joint tenancy etc.)? |
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It is treated like jointly owned property by any two people and one of the parties can sue to have the property sold and proceeds divided. |
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| Q: |
How is personal property (household goods etc.) divided if a cohabiting couple splits? |
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There are no rules since the rules which apply to married couples do not apply to non-marital cohabitants, whether heterosexual or gay/lesbian. The logic of the situation is that each cohabitant should take what they brought into the relationship and what they acquire together should be divided on a fair basis, which could be the financial contribution each of them brought to the relationship, and what an unemployed party may have contributed in the way of housekeeping and the like, or it could be divided 50/50. |
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| Q: |
Where a cohabiting arrangement is in every aspect like a marriage, but it was not formalized by marriage would the divorce laws apply to dissolution of the non-marital relationship? |
| A: |
No. Divorce laws (except for child custody and support laws relating to children born out of a non-marital relationship) do not apply to a non-marital relationship. |
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| Q: |
When non-marital cohabitants have a child, does putting the father's name on the birth certificate, with the father's approval, prove that he is, as a matter of law, the father? |
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No. The name on the birth certificate does not prove paternity, although it may be some evidence of paternity. Paternity may be established by a court action under the Parentage Act, or by the parents signing and having witnessed the voluntary acknowledgment form prescribed by law. Often hospitals will have these forms and these forms can be obtained from the Clerk of the Circuit Court. |
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| Q: |
Is it wise for a non-marital couple to have a written agreement establishing what their relationship will be and what will happen in the event they break up? |
| A: |
Yes, in the same sense that it might be well for a couple anticipating marriage to have a premarital agreement. The problem is that neither a premarital agreement, or a non-marital agreement is romantic. But if and when the relationship stops being romantic an agreement becomes very useful. An agreement, however, which provides for sexual services as part of the consideration, makes the entire agreement non-enforceable. |
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| Q: |
If a non-marital couple cohabits for a number of years and then marries, in the event of a divorce will the length of the non-marital cohabitation be added to the years of marriage for "seniority rights" in the divorce? |
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No. Marital property rights start only after the marriage and the right to maintenance (alimony) is also measured in terms of the start of the marriage, and not the start of the cohabitation. The marriage does, however, legitimize any child born to the parties before the marriage. |
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