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Illinois Supreme Court Rules On Unmarried Property Division

 Posted on September 16, 2016 in Property Division

Illinois Supreme Court Rules On Unmarried Property DivisionThe Chicago Tribune reported on a recent Illinois Supreme Court decision regarding property division after cohabitating couples break up. This case was about a lesbian couple who had been together for over 25 years but had recently broken up. The two were never married. The court ruled that the couple was not entitled to the same property division protections that a married couple would have access to.

This Case

This case was brought by Ellen Brewer who was with her partner Dr. Jane Blumenthal for 26 years. They lived together and raised a child together. The couple split up in 2008 before gay marriage was legal in Illinois. The controversy centered around the dividing up of assets after the split. Ms. Brewer says that she gave Dr. Blumenthal the money to buy into the practice she is part owner of and therefore should get a portion of the assets when the business is sold. The court held that because the couple was not married, Ms. Brewer does not get the benefit of a marital type property claim.


The court’s ruling primarily relied on precedent. The opinion heavily cites a 1979 case Hewitt v. Hewitt, where the woman in a recently split up unmarried couple who lived together and raised a child together was trying to assert property rights similar to if they were married. In that case, the court said that common law marriage had been outlawed in Illinois since the early 1900s, so therefore unmarried couples should not have the same property rights as married couples.


The court held along the same lines, and with the same rationale, as in Hewitt. If Illinois does not want there to be common law marriage, then people who are not married should not have the same property rights as people who are. Five of the seven justices agreed that “legislature intended marriage to be the only legally protected family relationship under Illinois law.” They believe that the proper place to change this law would be in the legislature and not through the judicial system. The fact that the couple had no ability to get married under Illinois law during this time was not persuasive to the court. The court relies on the fact that the couple could have gotten married in another state if they wanted to.


Brewer argued that the changing understanding of marriage means that unmarried couples should have more rights. Some critics of the opinion think that this is a step back for the rights of gay and lesbian couples. The author of the dissent wrote that Illinois is one of the three states that does not recognize property division between unmarried couples and that it is time that Illinois followed the trend.

Contact Us with Questions

If you are thinking about a divorce or have questions about the changes that marriage makes to property division rules and protections, you should contact a knowledgeable property division attorney to find out how this ruling and other laws will affect your situation. Our passionate DuPage County property division attorneys at Davi Law Group, LLC can help you with all your property division needs.



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