Choosing Cohabitation over Marriage

 Posted on July 10, 2014 in Family Law

Formerly, the only accepted family arrangement in Illinois was a married couple with children (of course, the marriage had to come before the kids). Society considered two-parent households – one mother and one father – the ideal that everyone should aspire to reach. Today, while "traditional" family arrangements are still sought after, both society and the law have become more accepting of "nontraditional" arrangements.

One example of a "nontraditional" arrangement is cohabitation. Although Illinois courts do not recognize a common law marriage (living together for a number of years while acting like a married couple), they will enforce a cohabitation agreement. Essentially, to cohabit with another person is to live together without getting married. As with any coupling, cohabitation is a personal decision and will not work for everyone. When pursuing this course it is wise to consider a cohabitation agreement.

Cohabitation Agreement

A cohabitation agreement is a contract that governs various aspects of an unmarried couple's relationship, similar to a business partnership agreement. Typically, it is used to set forth terms for dividing assets and debts if the couple separates. Here are several other issues that are often addressed in a cohabitation agreement:

• How to define household roles and to divide household responsibilities;

• How to divide payment of household expenses such as rent or mortgage, utility bills, or insurance;

• How to define each party's parenting role if the couple separates (this is especially important if one party is not the biological or adoptive parent)*; and

• Whether to name each other as a conservator (i.e., guardian) in the case of medical incapacitation.

*Such terms may affect but will not control a court's decision regarding child custody or visitation rights. Ultimately, a court decides these issues based on what is in the child's best interest.

The Downsides of Choosing Cohabitation

Under Illinois law, cohabitation terminates maintenance payments from a past marriage. For these purposes, the law defines cohabitation as living with another person on a "resident, continuing conjugal basis." "Conjugal" basically means marriage-like. Factors that a court will use to determine the nature of an alleged cohabitation include whether the relationship acts more like a marriage or more like a house-sharing arrangement, and the economic impact of the relationship.

A couple might also decide that cohabitation deprives them of the benefits enjoyed by married couples, such as favorable tax or inheritance laws, as well as emotional and other intangible benefits. For example, before Illinois broadened its civil union laws and legalized same-sex marriage, cohabitation was the only option for gay couples. Now that the law treats them equally, gay couples, like straight couples, may consider the pros and cons of marriage versus cohabitation. Our experienced family law attorneys understand that the choice not to marry is personal. No one family arrangement works for everyone, but we can ensure that the arrangement you choose works for you. If you opt to cohabitate with your partner, your best chance for success is to enter into a cohabitation agreement. Contact our experienced Kane County family law attorneys today for a consultation. We can assist those in the St. Charles area.