Does Illinois recognize common-law marriages?
It’s a critical question… and the answer has a profound impact on your rights under the law.
Common law marriages are becoming less prevalent and are now only recognized in a small number of states. But you can still be impacted by common law marriage statutes no matter where you live.
Here’s what you need to know about common law marriage in Illinois.
What is common law marriage?
Common law marriage is a union that can exist when a couple has lived together for a period of time and presents themselves as married to their local community. The biggest difference is that in a common law marriage, no formal union has ever taken place, or has been recognized by a religious service or recorded in a state registry (marriage license) of any kind.
It should be noted, there is a difference between simply cohabitating (living) together and common law marriage. The threshold for recognizing common law marriage is higher. Some jurisdictions require that a couple be living together for a minimum amount of time (3 to 7 years is the norm). Some states have no minimum cohabitating requirement.
Only a few states still allow common law marriages to take place. Illinois is not one of those states but there are some exceptions.
What states allow common law marriages?
Here’s the list of states that currently allow common law marriages:
- Colorado
- Iowa
- Kansas
- Montana
- Oklahoma
- Rhode Island
- Texas
Common law marriage is also recognized in Washington, D.C.
Some states also recognize common law marriages to be grandfathered in if they took place before a certain date. If you entered into a common law marriage in that state before the law was changed to deny common law marriages, your union will still be recognized as legal and valid.
A few myths about common-law marriage
There’s a lot of misinformation and perceptions about common law marriage that can confuse people who are interested in the subject. Here are some of the more common myths:
Myth #1. Cohabitation by itself is enough to have a valid common law marriage.
Not true. There are several other components of a common law marriage that must be in play for a common law marriage to be considered valid. Most notably, the couple must present themselves as a married couple to the public. This may include the woman assuming the man’s last name, filing joint tax returns or other visible evidence of an intended common law marriage.
Myth #2. Property owned by a common law spouse is automatically considered a marital asset and will be split accordingly in a divorce.
Laws regarding the division of assets vary by state, but are only granted to legally married couples. If a common law spouse is the sole owner of a shared residence, then he or she has sole rights to the property and can do what they want with it at any time. They don’t need the other common law spouse’s consent to sell the property and do not need to share proceeds in most cases.
If you’re in a common law marriage, a smart move is to buy a home or refinance an existing home under a co-ownership agreement. This means both names will be listed on the deed as purchasers and both partners will enjoy the benefits and responsibilities of home ownership.
Myth #3. Common law parents must each adopt any child they have together.
Children born from common law marriages have the same rights as those born from a regular marriage. This means common law parents also automatically have the same obligations as other parents as well. No adoption is necessary once a child is already acknowledged by a mother and father in a common law marriage.
Myth #4. If a common law spouse dies, the surviving partner automatically inherits or all assets.
You might be able to claim your partner’s assets if they die and you’re in a legally recognized common law marriage. But it is definitely not automatic. You will need to provide legal proof of the common law marriage, and you are more vulnerable to claims on the estate from the spouse’s other family members.
To protect your common law spouse’s interests, consider drafting a will or a cohabitation agreement to give the court a clear indication of your intentions if you die or become grossly disabled.
Pros and cons of common law marriage
The Pros
Common law marriages have traditionally favored women, who were often economically dependent on their partners.
Common law marriage provides a stronger case for benefits to each spouse than simple cohabitation. They are different kinds of legal relationships in the eyes of the law.
A legally recognized common law marriage provides benefits that unmarried cohabitating couples do not get. This can include the right to make medical decisions for a disabled spouse, the right to a formal divorce and the ability to inherit a spouse’s property.
Common law marriage vs. cohabitation can also have an impact on Social Security benefits and survivor benefits.
Cohabitation doesn’t entitle you to any particular split or partition of property or assets. If you cannot discern who gets what and you have to go before a judge, you could wind up on the short end of the outcome. In lieu of a recognized common law marriage, you should develop a cohabitation agreement to protect your rights and interests. The court will consider this a legitimate legal document.
There is no difference between a common law marriage and a legal marriage in states that recognize common law marriages, except for the marriage certificate and the marriage ceremony.
Having children out of wedlock was much less acceptable than in more recent years. Today, common law marriages are a less formal, but more readily accepted way to legitimize parenting.
Illinois recognizes common law marriages that are from other countries.
The Cons
Common law marriages apply to heterosexual couples only. Illinois allows for civil unions which are different but do apply to same-sex couples.
Illinois does not allow people to enter into common law marriages, but when a couple moves to the state and they are in a common law marriage that is valid from where they moved, it will be recognized. However, due to the vague nature of common law marriages, you may need to make extra efforts to have your common law marriage recognized by the state.
States prefer clarity and common law marriage does not always provide that, which is why the practice is slowly dwindling throughout the United States.
If you can’t clearly establish your common law marriage, it can be difficult for one spouse to collect benefits or other incentives. In fact, without enough documentation, you may wind up with nothing.
Couples who enter into common law marriages usually do so because they turned off by the financial costs of a wedding or the usual formalities and the actual time and legal processes that getting married entails.
The flip side of this is that a couple must consistently prove that they have entered into a common law marriage when they want to receive the marital benefits.
Does Illinois have common law marriages?
Illinois does not allow common law marriages to take place in the state.
This dates back to a case more than 30 years ago (Hewitt v. Hewitt) that was ruled upon by the Illinois Supreme Court. The court stated that common law marriages violated a longstanding policy of recognizing any agreement that would result in “future illicit cohabitation.”
The policy was implemented to discourage “cohabitation between unmarried parties and disfavor non-marital children.”
This landmark case in the state was cited in other similar subsequent cases involving common law marriage.
Although the state has acknowledged there has been a change in social attitudes toward unmarried cohabitation, as recent as 2016, the case of Blumenthal v. Brewer reaffirmed the state’s continued law and policies toward common law marriage.
The only way that common law marriages are recognized in Illinois is if the common law marriage was entered into in another state where common law marriages are legal.
Does Illinois recognize common law marriages that were established in other states?
Yes. This is because the Full Faith and Credit clause of the U.S. Constitution requires all states to accept a common law marriage established in a state that recognizes a common law marriage.
This law protects couples who entered into a valid common law marriage in another state where it is legal, even if they subsequently move to a state where it is not currently legal.
How does common law marriage impact health insurance eligibility in Illinois?
The Illinois Religious Freedom Protection and Civil Union Act passed in 2011 allows same-sex and different-sex couples to enter int a civil union. Under this arrangement, they are entitled to all the same rights, protections and obligations that Illinois provides to heterosexual couples.
Those who want to enter into a civil union have to obtain a license and register their union. All current procedures and rules applicable to dissolving a marriage also apply to partners in a civil union.
However, a civil union is not the same as a common law marriage. You need to understand the differences.
As it relates to health insurance, in a common law marriage, if an employer offers spousal coverage for health insurance, then the employer must also allow a spouse from a common law marriage to enroll for benefits the same as if they were in a traditional marriage.
Even though common law marriage can’t take place in Illinois, if established elsewhere that common law marriage is legal, then it must be recognized as such in the state.
Also, in a common law marriage, children have the presumption of legitimacy, so they are considered an employee’s dependents for purposes of health insurance coverage.
Some employers may require a signed affidavit from an employee to recognize the common law marriage before enrolling a spouse on the health plan. Employers may also require proof by requesting evidence such as joint tax returns, checking accounts, mortgage or lease, or other requirements specified under the state laws.
Entering into a common-law marriage contract
Because Illinois does not recognize common law marriages and the rights and benefits that may go along with that designation, couples should consider taking a different path to protect their rights by entering into a cohabitation or common law marriage contract.
Think of it as the equivalent of a prenuptial agreement for common law spouses.
By formally recording your rights and responsibilities in a written agreement you can specify the terms of your relationship in such a way that may confer upon you many of the same benefits as a married couple. You can clearly state if you consider yourself to be in a common law relationship or if you are simply cohabitating with each other.
When you do this, both you and your partner are protected against disagreements and third-party claims at a later date.
Why is this important?
For example, if you document that you are in a contractual relationship only, but not trying to establish a common law marriage, your so-called “spouse” who you have lived with for a number of years can’t stake a claim to certain assets, such as your pension, which they might otherwise have rights to as part of your common law marriage.
For more information, check out our guide on Common Law Marriage by State.
Are there common law divorces?
If you’re in a legally recognized common law marriage, there is no difference between a traditional divorce and a common law divorce. In reality, there is no such thing as a common law divorce.
You will need to go through the same steps for a common law divorce as you would for a traditional divorce in Illinois.
The only other way to get out of a common law marriage is when one partner or the other passes away.
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