This day and age, more and more people are choosing to be involved in serious long-term relationships, some even living with their partners, without getting married. Some people simply don’t feel the need to formalize their relationship, some have had bad marriages, and some have their own reasons to avoid marriage. What happens when these relationships fail?
The state of Illinois has not recognized common law marriage for decades, and until the 1970s, cohabitation between non-married couples was prohibited by law. The prohibition is long gone, but the question of how to divide property between non-married cohabitants lingers. While several variations of the question have been answered by the Illinois courts, the Appellate Court recently addressed the question again in the Allen case. In re the Marriage of Allen, 2016 IL App (1st) 151620.
The Allens were husband and wife that had been romantically involved for roughly 13 years. They had cohabited for intermittent periods during those years, and in 2012, they were married. Both parties filed Petitions for Dissolution roughly seven (7) months after they were married. The husband, Keith, had substantial non-marital assets, including a very successful group of McDonald’s restaurants. Wife, Debra, had some job experience and was college educated, but she did not have any meaningful wealth. While the parties had only been married for several months, Debra asserted that she should be awarded maintenance in addition to a portion of the marital property larger than the short term marriage would normally allow. She later added a claim of unjust enrichment, based on the Appellate Court’s holding in Blumenthal v. Brewer.
In Blumenthal, the court dealt with the break-up of a long-term same-sex relationship. The parties had cohabitated and accumulated significant assets. In an attempt to secure an equitable division of the assets, one of the parties asserted an unjust enrichment claim, asking the court to partition the real property shared by the parties as well as a business owned by one of the parties. At the time, the controlling case was Hewitt v. Hewitt, which barred common law partition and unjust enrichment claims between non-married cohabitants. That claim was dismissed by the trial court, but that dismissal was vacated by the appellate court. At the time of the court’s decision, Illinois had enacted legislation creating civil unions for same-sex couples and public policy had changed such that non-marital cohabitation was no longer frowned upon by the authorities. The Blumenthal court held that Hewitt was not controlling under the circumstances because whereas the couple in Hewitt could have married at any time, the parties in Blumenthal did not have that option available to them. Accordingly, the appellate court allowed the unjust enrichment claims to proceed.
After a review of the Blumenthal and Hewitt decisions, the Allen court found that Hewitt was controlling. Like the couple in Hewitt, the Allens could have married at any time during the course of their 13 year relationship but choose not to. Accordingly, Debra’s claims for maintenance and property division were rightfully limited to the seven month period during which the parties were married. What’s the lesson in all of this? Absent written agreement or other extraordinary circumstances, nonmarried couples lack any legal protection when it comes to property rights and maintenance – even if they are cohabitating.
Are you in a long-term non-marital relationship? Contact The Nally Law Group today to discuss ways to protect yourself and your rights in the event of a breakup.
In the ever-changing cultural landscape we live in, the reality is that 50% of marriages fail. As the divorce rate rises, so does the prevalence of prenuptial agreements. Prenuptial and postnuptial agreements are excellent tools and much less taboo than they were once considered. Whether you are faced with the prospect of entering a pre- or postnuptial agreement or dissolution proceedings involving a pre- or postnuptial agreement, it is important to understand the basic rules.
Generally speaking, a prenuptial agreement can pre-determine just about all issues typically raised in dissolution proceedings with one huge exception. Premarital agreements may not determine custody of any children born to or adopted by the parties; otherwise, just about everything else is fair game. In Illinois, prenuptial agreements are governed by the Uniform Premarital Agreement Act (codified as 750 ILCS 10/1 et seq.); however, prenuptial agreements executed prior to 1990 are governed by general contract law.
Under the Uniform Premarital Agreement Act, prenuptial agreements become effective upon marriage and will generally be enforceable as long as three conditions are met: 1) both parties submitted to a full and complete disclosure of their financial picture, 2) an absence of fraud or duress, and 3) the agreement is not unconscionable. These conditions all have to do with the conditions at the time the prenuptial agreement is signed.
Disclosure is a crucial element to the effectiveness and enforcement of any pre- or post-marital agreement. Both parties must provide a full and honest disclosure of his or her financial condition – including assets, liabilities, current income, etc. This disclosure provides parties a context to evaluate the terms contained in the agreement and the potential assets – or liabilities – they may be walking away from. Disclosures may be waived by either party, but only in writing signed by the other. If one party fails to provide complete and adequate disclosure at the time the premarital agreement is signed, that may be grounds to set it aside in a dissolution action. Both the adequacy and accuracy of purported disclosures may be challenged. Along these lines, a party is entitled to be represented by his or her own counsel during the negotiations of the agreement but may waive that right so long as it is writing.
Another commonly litigated issue is the overall fairness of the premarital agreement, otherwise known as conscionability. Unconscionable is legalese for for extraordinary unbalanced and unfair. “The term ‘unconscionability’ includes 'an absence of a meaningful choice on the part of one of the parties together with contract terms that are unreasonably favorable to the other party.' A contract is unconscionable when it is improvident, totally one-sided or oppressive." This court later held that the inquiry into unconscionability requires at least two considerations: (1) the conditions under which the agreement was made and (2) the economic circumstances of the parties that result from the agreement.” In re Marriage of Gurin, 212 Ill. App.3d 806 (internal citations omitted.) The court makes this determination based upon the circumstances known and reasonably foreseeable at the time the premarital agreement is signed. Even if an agreement is found unconscionable, the court still has to find that there were inadequate disclosures before the agreement may be set aside. 750 ILCS 10/7.
While not common, there are certain circumstances which may exist at the time the prenuptial agreement is seeking to be enforced which may defeat the terms of the agreement. The court has discretion to order maintenance, even if a party has waived the right to such, if the enforcement of that waiver would work an “undue hardship” on the party (See 750 ILCS 750 10/7). The language of the statute allows the exception only to the extent necessary to avoid the hardship; furthermore, the hardship must be due to circumstances which were not reasonably foreseeable at the time the prenuptial agreement was signed.
Did you sign a prenuptial agreement and now facing dissolution proceedings? Are you faced with the prospect of entering into a prenup? Contact the Nally Law Group today to set up a consultation to find out how you can best protect your rights.