For married couples, deciding to divorce can understandably be a challenging decision. Property acquired during the marriage must be divided, and custody of any children must be awarded. In Illinois, married couples who decide to dissolve their marriage are entitled to certain rights with regard to children and property ownership.
In this day and age, however, courts must also determine how to handle these issues with regard to unmarried couples who decide to end their relationship, as a significant number of children are born out of wedlock in the United States each and every year. In such a case, laws and rights differ from situations involving married couples.
If your romantic relationship has ended, you may nevertheless be entitled to certain rights when it comes to the division of property and custody of children born during the relationship. The team of family law attorneys at Dolci & Weiland are dedicated to ensuring that unmarried couples understand their rights and responsibilities following the termination of their relationship.
Issues Related to Children of Unmarried Couples
In Illinois, a vast amount of law exists pertaining to children of married couples who are obtaining a divorce. Not all children are born to a marriage, however, and when it comes to children born to an unmarried couple, the state's laws treat the couples' rights and responsibilities differently.
Child Custody and Visitation Rights
In a married relationship, both the mother and father may be awarded joint custody of the child if the child was born during the marriage. In contrast, in a couple who is not married, the mother will have sole custody of the child unless the father both establishes paternity and asks a court for an award of custody.
In order to award custody of a child to a parent, parentage must be established. Parentage is the term for the legal relationship between a parent and his or her child. A birth mother's parentage is usually easy to establish, as the act of giving birth proves her parentage. In an unmarried relationship, determining the other individual's parentage can prove more difficult. This
In Illinois, there are several ways in which custody can be determined:
- If parents of the child marry after the birth of a child, the other person in the unmarried relationship can be listed on the birth certificate as the parent of the child;
- The person in the unmarried relationship was married to the biological mother of the child at some point during the pregnancy; or
- The court awards an order of custody to the person in the unmarried relationship.
For fathers of children, there are additional ways in which paternity can be established:
- a court can also enter an Order of Paternity declaring a man in the relationship the father of the child;
- if both parents agree, they can complete a Voluntary Acknowledgement of Paternity form--otherwise known as a VAP--stating that the man in the unmarried relationship is the father of the child; or
- the Department of Healthcare and Family Services, or HFS, can enter an administrative paternity order through the department's Child Support Service section.
It's important to note that a VAP form is a binding legal document--once signed, the signor is presumed to be the child's father, regardless of whether a DNA test has been conducted, and a person only has 60 days to rescind the contract. Any male who is considering signing a VAP form should pursue DNA testing if at all unsure that he is the father of the child.
Once a parent has established custody, the parent can seek visitation rights--otherwise known as "parenting time"--in order to spend time with the child. Illinois courts will consider several factors in determining whether a parent should be awarded visitation rights, including:
- The financial status of both parents;
- The living situation for both parents;
- The moral character of both parents; and
- The involvement of each parent in the upbringing of the child.
As with a married couple, a court determines child custody disputes based on the "best interest of the child" standard, meaning that the court awards custody and visitation based on what arrangement would be most beneficial to the upbringing and growth of the child.
Once parentage is established with regard to a child born to an unmarried couple, either parent can be ordered to pay child support to the other parent. A couple's nonmarried status has no bearing on entitlement to child support--because the purpose of child support is to ensure that a child's needs are taken care of, a parent who is awarded custody of an unmarried couple's child is entitled to receive child support benefits from the noncustodial parent.
Property Ownership for Unmarried Couples
While married couples retain certain legal rights to a spouse's property following the dissolution of the parties' marriage, the same rights are not awarded to nonmarried couples, no matter how serious the relationship might have been. When it comes to the division of property following separation, an unmarried partner has very little recourse to recover property, due to the state's policy of "discouraging cohabitation between unmarried parties and disfavoring nonmarital children."
As recently as 2016, the Illinois Supreme Court reaffirmed that unmarried partners have no rights to the other partner's property if the couple breaks up. The court reasoned that as Illinois now allowed same-sex couples to legally marry, there was no valid reason to protect the property rights of a couple who opted to live together without marrying each other. Therefore, even if a couple acts as if they are married by commingling funds and living together unless the parties are legally married, no legal protections are available to protect the property rights for an unmarried couple who breaks up.
Facing Separation from your Unmarried Partner? Contact Us Today
If you are separating from your partner in the state of Illinois, you may be entitled to certain rights even though you were not legally married. The attorneys who make up Dolci & Weiland's family law team are dedicated to helping unmarried couples obtain a fair settlement when it comes to issues such as custody of children and division of property.
Don't let yourself get taken advantage of after your breakup--to speak to a member of our legal team today, fill out an online case evaluation form or contact the Dolci & Weiland office closest to you today--for our DuPage office, call (630) 261-9098, or for our downtown Chicago location, contact (312) 238-9007.