Status of unmarried couples explored by seminar panel

Issues raised when unmarried couples cohabit took center stage on the opening day of the ISBA Midyear Meeting last month with the Dec. 6 seminar, “Legal Implications of Effective Representation of Unmarried Couples.”
“There are 1,138 federal rights and responsibilities accorded to couples based on marital status,” said Cook County Associate Judge Nancy J. Katz, a member of the Family Law Section Council.
“Some of these issues include property rights, child custody, healthcare directives, retirement benefits and dissolution of partnerships,“ she noted.
ISBA President Joseph G. Bisceglia pointed out that “these issues, regarding the rights and obligations of couples in committed relationships are significant and growing. There’s a lack of clarity in the law which poses significant problems regarding them.”
The ISBA Assembly voted in June to support the concept of rights for unmarried couples as expressed in the proposed Illinois Religious Freedom Protection and Civil Unions Act (H.B. 1826).
States such as California, Hawaii, Maine and New Jersey have legalized civil unions or extended certain rights to unwed couples.
“This area has been the exclusive province of the states for 200 years,” said Colleen Connell, executive director of the American Civil Liberties Union in Chicago. “The federal government is simply not in the business of defining marriage.”
The Illinois Marriage and Dissolution of Marriage Act defines marriage, confers rights and responsibilities for each partner, and addresses the rights and responsibilities of partners and children in a marriage.
At present, these protections and responsibilities are accorded only to opposite-sex, married couples. Gay and lesbian couples in committed relationships are excluded, as are opposite-sex couples who live in a quasi-marital situations.
For State Rep. Gregory Harris of Chicago, a sponsor of the bill, it simply represents today’s reality.
“Myself and colleagues who support this bill are trying to make Illinois public policy more consonant with evolving realities of same-sex and opposite-sex partners, including seniors who may not wish to enter into marriage for a variety of reasons,” he said.
Judge Katz added that “children are often the real victims of the lack of recognition of same-sex marriage or other unmarried partners because they don’t get to vote or choose whether their parents are married or unmarried.”
Chicago attorney Richard Wilson said the issue really isn’t about whether a couple is gay, lesbian or straight, but whether they’re married.
“Illinois has a bruising case law history of refusing to recognize agreements between unmarried couples,” said Wilson, past chair of the ISBA Committee on Sexual Orientation and Gender Identity.
In the landmark case of Hewitt v. Hewitt, 77 Ill. 2d 49 (1979), the Illinois Supreme Court found that Victoria L. Hewitt was not entitled to half the property she and her partner, Robert M. Hewitt, accumulated during their 15 years of living together in an outwardly marital situation.
Part of the court’s reasoning was that if Victoria Hewitt were granted half the property, it would judicially impose on common-law marriage, which was legislatively abolished in 1905.
ISBA Assembly member Andrea M. Schleifer of Chicago, who serves on the Bench and Bar Section Council, said that she has drafted many agreements for couples who wanted to live together.
“Initially, these agreements included provisions to raise children together,” she said, “because 28 years ago there was no ability to adopt children together.”
Schleifer added that every conceivable situation, including the sharing of rights, responsibilities and income, was added to the agreements.
Lest the documents be solely interpreted as contracts for court interpretation, however, she always included an arbitration or mediation provision.
Schleifer stressed an imperative that agreements to live together include estate planning, wills and powers of attorney for health and property.
“And it’s essential that they be statutorily executed,” she noted. “We’ve all seen cases where people with powers of attorney go into a bank to use it, and the bank says they don’t have the right form.”
Some Illinois jurisdictions allow couples to register as domestic couples. “It’s a status determination,” Schleifer said, “and many employers and insurance plans will recognize the determination of eligibility for domestic partnership benefits.”
But there are situations where nothing will work, in spite of the fact that a couple have shared their lives and material assets. “The law requires that only the law can be followed,” Schleifer said.
Jennifer A. Shaw of Edwardsville, chair of the Committee on Sexual Orientation and Gender Identity, said the question remains as to whether partnership or co-habitation agreements are enforceable in Illinois.
“But these agreements give the court some guidance as to what these parties intended when they formed their partnership,” said Shaw, who also serves on the Human Rights Section Council and is vice chair of the Committee on Minority and Women Participation.
Phillip J. Mohr, deputy director of Chicago Volunteer Legal Services, pointed out that while a married father, on the birth of his child, has immediate rights and obligations, an unmarried man doesn’t until it has been determined that he is the father.
“If the mother tells me that the father doesn’t plan on being involved in the child’s life or provide support, then I ask the if she really wants to name the father,” Mohr said.
“Most likely, she won’t be getting any child support. By filing, she might wind up granting him visitation, which she didn’t want, and could be prevented from leaving the state.”
Mohr added that the Parentage Act, which establishes who a child’s mother and father are, differs from marriage dissolution law in that it allows for retroactive child support back to the day of the child’s birth.
This may impact a mother’s right to claim support at some point in the future if she or the father files.
“Fathers who fail to pursue their rights may have their rights terminated via adoption,” Mohr said. “The Adoption Act only protects presumed fathers or fathers who have pursued their rights.”
Although the Parentage Act has certain factors that must be followed to pursue retroactive support, Mohr said it comes down to the mother having to use diligent efforts in pursuing support from the father.

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