Can Common-Law Marriage Affect an Illinois Divorce?

 Posted on January 29, 2021 in Divorce

In the state of Illinois, the only way to get legally married is by obtaining a marriage license and having a legal ceremony before a duly appointed officiant. However, other states still allow for the practice of common-law marriage, and if a couple moves to Illinois after being married under common law in another state, Illinois will recognize that marriage as legal. Regardless of how a couple was legally married, the only way to end a marriage in Illinois is through the legal process of divorce, and this can raise some unique complications for couples with common-law marriages.

Illinois and Common-Law Marriage

Generally, a common-law marriage is a situation in which the couple holds themselves to be married in public, has lived together for a substantial amount of time, and has acted in ways typical of a legally married couple, such as owning property together, filing taxes jointly, or taking the partner’s last name. This list of states that still allow such marriages is small, but in those states, a couple that becomes married under common law has the same benefits and responsibilities as a couple who was formally married in a legal ceremony. These benefits and responsibilities can be upheld even when the couple moves to a state such as Illinois that does not allow common-law marriage.

Divorce After a Common-Law Marriage

While some states have common-law marriages, there is no such thing as a common-law divorce in any state. This means that a divorce must take place through the court system. If you met all the requirements for a common-law marriage in another state and then moved to Illinois, you would need to follow Illinois’s legal process for getting a divorce if you wish to end your marriage. Keep in mind that you must reside in Illinois for at least 90 days in order to file for divorce in Illinois.

Ending your common-law marriage is important if you want to get legally married to another person. It is illegal in Illinois to be married to more than one person at a time, a situation known as bigamy, and this may apply whether you entered into your current marriage through the traditional process or through common-law marriage in another state.

Filing for divorce after a common-law marriage in another state can have other complications as well. For example, if your partner contests your claim that you were legally married, you will need to prove to the court that your relationship was in fact recognized as a common-law marriage in the state where you lived previously. Only then will the court have the authority to hear your case like any other divorce case and rule on decisions including how property should be divided and whether anyone should be required to pay spousal support.

Contact a Kane County Divorce Lawyer

If you lived with your significant other for many years without getting formally married in another state before moving to Illinois, it is a good idea to discuss your situation with an experienced St. Charles family law attorney. The team at Goostree Law Group can help you understand what legal rights you have and whether you will need to pursue a divorce to achieve your desired outcome. Call 630-584-4800 for a free consultation today.

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59