As a new generation of twenty-something’s reaches marriage age; more and more couples are opting to live together and either delay or entirely forego that long trip down the aisle. This is not surprising considering that many of today’s young adults carry deep wounds from a record high divorce rate that plagued their parents’ generation in the 1980’s and 90’s.

In an attempt to avoid becoming part of a divorce statistic, it is possible that young couples avoid marriage in order to avoid divorce. Unfortunately, the legal consequences of a breakup for unmarried couples can actually be far worse than the legal consequences of divorce.

The most effective way to gain the legal benefits of marriage is by getting married, but same-sex couples are denied the legal right to marry in Illinois, and many heterosexual couples are resistant to marriage. Thus, there are steps that Illinois attorneys can take to ensure that cohabiting couples receive most of the legal benefits of marriage.

The legal disadvantages of cohabitation

When a married couple divorces, each person is generally entitled to 50% of all assets attained during marriage. Co-habiting couples, on the other hand, do not have the luxury of a legal formula to determine what happens to all of their assets when they break up. For example, when a married couple buys a car, only one person’s name is on the title, but courts recognize that each person has equal ownership of it, whereas courts would give 100% ownership of a co-habiting couple’s car to the title holder. There is no assumption that a co-habiting couple’s assets are jointly owned, and neither person is entitled to anything that they did not specifically pay for or gain title to.

The 1970 lawsuit of Hewitt v. Hewitt, 77 Ill 2d 49, 394 NE2d 1204 (1979), is the most recent Illinois Supreme Court case involving the division of assets between non-married cohabitants. The Hewitt’s lived together outside of marriage, but Ms. Hewitt changed her name and the couple presented themselves as husband and wife. The couple agreed that Mr. Hewitt would be the primary wage earner while Ms. Hewitt fulfilled all other tasks involved in maintaining the household. When the couple broke up, the Illinois Supreme Court decided that because Mr. Hewitt supported the household financially, Ms. Hewitt had no right to any of the couples’ assets.

If the facts in the Hewitt case were different, and instead of breaking up, Mr. Hewitt died, technically, the result would have been the same. Ms. Hewitt could have been served with an eviction notice from Mr. Hewitt’s relatives and been forced to leave her home.

Cohabitation is considered socially undesirable in Illinois, and thus far, courts have not gone out of their way to extend the benefits of marriage to cohabitants. Because the result of breakups and death among cohabiting couples can be unfair, it is important for unmarried couples to hire attorneys and secure the legal benefits of marriage.

Contracts for cohabitants

The lesson from Hewitt v. Hewitt is that cohabiting parties should form written contracts regarding living arrangements. One simple written document drafted by an attorney could have changed the result of the entire case for Ms. Hewitt.

Although written contracts and wills cannot provide all of the legal benefits of marriage, such as social security benefits based on a spouse’s earnings or loss of consortium based on a spouse’s damages in a lawsuit, an effective attorney can ensure that cohabitants receive most of the legal benefits of marriage.

Contracts can indicate that all assets attained during cohabitation are joint assets, to be divided equally in the event of a break up. Furthermore, written contracts between unmarried couples can establish each person’s services to the household, such as who makes money and who is responsible for household management.

Estate planning is another step that cohabitants should consider to give members of a couple rights to one another’s property and health care in the event of death or serious medical illness. Ordinarily, when one member of a cohabiting couple becomes ill or dies, the other has no right to make serious medical decisions or inherit the other’s estate. Typically, the deceased partner’s estate is left in the hands of his or her family, which can be particularly troublesome when the decedent’s relatives hate the other partner.

Unmarried couples risk ugly battles in the event of death or breakups, with no assistance from Illinois courts unless their relationships are governed by contracts. By drafting contracts and wills, Illinois divorce attorneys and estate-planning attorneys can provide cohabiting couples with most of the legal benefits of marriage.