What Is Common Law Marriage?
Common law marriage is a legally recognized union between two people who do not get a marriage license, hold a ceremony, or legally register a marriage. They do live together as spouses and present themselves as such.
Most states do not permit new common law marriages. Those that do may have criteria such as living together for a minimum amount of time, mutual intent to be considered married, or acting as a married couple to the public.
Couples in common law marriages have the same rights as formally married couples in states that permit it. For example, property ownership, inheritance, and spousal support rights are the same for both types of couples.
Common law marriage stems from times when marriage was not as easy or as accessible as it is today. Illinois abolished its common law marriage in 1905.
If you entered into a common law marriage in a state that permits such unions to be contracted and then moved to Illinois, Illinois law should consider your marriage valid. This is due to the Full Faith and Credit Clause of the U.S. Constitution. In other words, Illinois does not permit the formation of new common law marriages within its borders, but it honors those established in other states with these permissions.
If you are part of a common law couple who moved to Illinois from another state, it is important to research your rights when terminating common law marriage. The process can involve legal separation, property division, child custody, and spousal support.
Eight states allow common law marriage under certain conditions. They are Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. For example, in Colorado, a common law marriage on or after Sept. 1, 2006, may be valid if both parties were 18 or older and other laws do not prohibit the marriage.
A few other states allowed common law marriages and still recognize them as valid as long as they were entered into before common law marriage was abolished. These states are Pennsylvania (no new common law marriages on or after Jan. 1, 2005), Ohio (not on or after Oct. 10, 1991), Indiana (not after Jan. 1, 1958), Georgia (not after Jan. 1, 1997), Florida (not after Jan. 1, 1968), and Alabama (not after Jan. 1, 2017).
This means a couple who entered into a common law marriage in Alabama in 2015 could have their union recognized by Illinois after moving there. However, a couple who did the same in 2020 would likely meet a different result.
Cohabitation Law
If Illinois does not recognize your common law marriage, you may have options similar to those for unmarried couples who live together. The process of disengaging can be easier or harder without official state recognition of the relationship.
For example, under cohabitation law, unmarried partners have no legal right to each other’s property if they split. Having children together does not affect this determination.
Many cohabiting couples who do not get married use a cohabitation agreement to protect themselves and gain peace of mind. It is similar to a prenuptial agreement and outlines asset distribution and many other financial aspects of a relationship.
How Does the Termination of Common Law Marriage Work in Illinois?
Terminating a common law marriage in Illinois is similar to the process of getting a traditional divorce. Legal termination occurs through the Illinois family court system and addresses common issues, such as property division and child custody.
Legal Separation or Divorce
When partners in a common law marriage want to end their relationship in Illinois, they usually must file for legal separation or divorce. If you are part of such a couple, you may need a common law separation agreement. It outlines issues such as property division and spousal support.
A legal separation lawyer can be helpful for protecting your rights, especially if the split involves complicated issues. Simply deciding to live apart and no longer presenting yourself as married does not automatically terminate a common law marriage you formed in another state. It can, however, affect how long your marriage may have lasted.
Property Division
Illinois uses equitable distribution, which calls for the fair division of marital property. Fair does not necessarily mean equal.
Most or even all the assets and debts partners acquired during a marriage may be marital property. To preserve your rights to marital property when terminating common law marriage, evidence of your marriage in another state can be valuable.
Child Custody and Child Support
The best interests of the child determine custody arrangements in the Glencoe area as well as in the rest of Illinois. Considerations include the stability of each parent’s home environment, the parents’ involvement in the child’s life, and if one or both parents have been primary or joint caregivers.
Custody issues can become heated quickly. Allegations of abuse, neglect, or improper care are distressing when used against you in a custody battle.
A lawyer for common law marriage can explain how child custody is determined in Illinois and discuss your case. Also, child support may be required of the noncustodial parent. Illinois has guidelines for child support payments that consider factors such as the income of both parents and the needs of the child.
Spousal Support
Alimony factors include the duration of the marriage, both partners’ financial standings, and each person’s contributions to the union. Spousal support does not apply in all cases, nor is it granted automatically. A lawyer can help figure out if you could be eligible.
For calculating the duration of the marriage, the marriage’s start date is when the relationship met the common law requirements of the state where the couple used to live. The end date typically can be the date the couple separated or filed for divorce, although a lawyer can offer insight into whether other circumstances apply.
How a Family Lawyer Can Help You Navigate the Termination of Your Common Law Marriage in Glencoe
Ending unions can be complex legally, and your rights when terminating common law marriage are important. A family lawyer can provide valuable help in several ways.
The Validity of the Marriage
One step in terminating a common law marriage in Glencoe is proving that the marriage was valid in the state where the partners created it. A family lawyer can help you gather this documentation to show that your relationship met the legal criteria in the original state. This becomes especially important if the other party disputes that your common law marriage exists.
Separation Agreement
A common law separation agreement can resolve issues such as property division, spousal support, and child custody. An experienced attorney can help with negotiating and drafting an agreement that is fair and that considers your best interests. Attorneys can also help you avoid common mistakes, such as not accounting for all marital assets or misunderstanding Illinois custody laws.
Child Custody and Child Support Issues
A family lawyer can advocate for your parental rights when terminating common law marriage and help with the fair determination of child custody. For instance, a lawyer can gather evidence to show why primary custody for you is important or negotiate a joint custody arrangement that is in the child’s best interests. A lawyer can also assist in calculating child support payments that follow Illinois law.
Spousal Support
A lawyer can determine whether you are eligible for alimony and present your case. You must show evidence of your financial needs, the length of your marriage, and the contributions you and your spouse made to the relationship, among other things.
Your Rights
Some separations become contentious, perhaps with accusations involved. A lawyer can help you counter false claims or explain why some accusations are not as they seem at first. A strong case on your behalf is necessary for your rights when terminating common law marriage.
Legal Strategies
A lawyer experienced in Illinois family law can offer strategic advice. For instance, he or she can explain options such as mediation and litigation, and help you choose a path.
Many issues may come into play when you terminate your common law marriage. Contact us at Silberman Law Group to talk about your case.
