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Common Law Marriages and Your Rights

on in Divorce

common law, St. Charles family law attorneyMany years ago, a couple was considered to be married if they had lived together for at least seven years, and held themselves out as a couple during that time. Nowadays, most states have repudiated the idea of common law marriages in favor of statutory requirements for marriage, but not all have  done so. It is plausible to live with someone for a long period of time and be married under some states’ laws without even realizing it.

Common Law Marriages in Illinois

Generally speaking, three requirements must be met in order to have a valid common law marriage: (1) You and the other person must agree that you are married; (2) you must hold yourselves out as being married (for example, by the wife adopting the husband’s surname); and (3) you must cohabitate. Mere cohabitation is not enough to establish a valid marriage. However, there are less than a dozen states that still recognize common law marriage, and Illinois is not one of them. The state banned the practice in 1905, though lawmakers specified that people who previously had a common law marriage would still be recognized as married.

Despite the ban, common law couples would continue to move into Illinois, especially those from neighboring Iowa. Before a uniform body of law was established on the subject, each case had to be determined one at a time, which took considerable time and resources. The Illinois Marriage and Dissolution of Marriage Act eventually incorporated provisions regulating certain aspects of common law marriages, many of which are on the books today.

What You Should Know

Due to the Constitution’s Full Faith and Credit clause, Illinois still recognizes common law marriages that are valid in other states, even though you may not enter into a common law marriage in Illinois. Some people move to Illinois and think that their marriage is automatically invalid, which is not the case. In addition, you must obtain a divorce from a common law marriage in the same way you would from a marriage with a license. Some couples have established cohabitation agreements, which are similar to prenuptial agreements in that they discuss how assets are to be distributed. Still, a cohabitation agreement must be recognized by the court, and if a couple has none in place, a court may assist them in creating one.

One of the most important reasons to ensure your marriage is recognized is the question of probate. If you die without a will in Illinois, certain assets will pass to your relatives via the laws of intestate succession. Your spouse may be excluded from inheriting your estate if your marriage is common law with no license.

Keep in mind that children of a common law marriage are considered legitimate in Illinois, despite the marriage itself not being recognized. This can affect the question of parental rights as well as spousal support. Illinois also does not recognize the concept of palimony (support for unmarried people), so ensuring that your marriage is recognized, if you want it to be, can be very important.

Contact a Divorce Professional

When your rights are in question, you need the best on your side. The skilled St. Charles family law attorneys at Bochte, Kuzniar & Navigato, P.C. can help. Call 630-377-7770 for a free consultation today.


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