You broke up, now what? Legal Considerations in Separation

By Leslie A. Gutierrez

Break-ups are harsh. But they are even more taxing for couples who cohabitated prior to ending their relationship, because on top of all of the emotional turmoil, you have to fight over who stays, who goes, and who gets what. This article provides a simplified overview of some of the legal obstacles related to property rights that might arise post-break-up, and how to begin to address those obstacles. This article is written with the intention of providing solid legal information, and it’s quite heavy in the terminology to try and really help those that are seeking answers.

First, any analysis of one’s property rights must begin by defining the relationship. So, are you “married” in Illinois? Although at first glance this seems like a no-brainer, for same-sex couples, it is not. There have been many recent developments nation-wide as to the legal recognition afforded to same-sex relationships, and the law is still adjusting. So, the answer to this question varies depending on where you legally formalize your marriage and where you live now. Fortunately (somewhat) for those living in Illinois, the Illinois Religious Freedom and Civil Union Act (750 ILCS 75/1 et seq.) was enacted and became effective on June 1, 2011. This means that if you legally entered into a marriage, a civil union or a substantially similar legal relationship in another state, that relationship automatically became an Illinois civil union on June 1, 2011. As partners to a civil union, all of Illinois’ laws governing annulment, divorce, and property division that apply to married couples, equally apply to you. This includes, for example, Illinois’ joint simplified dissolution procedure (i.e. divorce) (750 ILCS 5/451 et seq.), where parties to a dissolution can file a joint petition for a simplified dissolution if certain conditions are met. This procedure can help streamline the divorce process. For more information about dissolution proceedings and for access to sample forms for filing, visit the Domestic Relations Division section of the Cook County Clerk of Court’s website.

For those couples who did not enter into a valid Illinois civil union but who cohabitated, the breaking-up process can be a bit more messy. The process can be as painless or as difficult as you choose to make it. If both sides can amicably agree as to the living arrangements and division of property, then it can all be done without going to court or relying on an attorney (but it wouldn’t hurt to put your agreements in writing). However, if it’s a bad break-up, then it can turn into a battleground of she said-she said, or he said-he said, or he said-she said, whatever the case may be. In this situation, the biggest scuffle is typically over property (unless, of course, there are children involved).

When a cohabitating couple terminates their relationship and they own title to real estate jointly (i.e. both names appear on it), the parties should attempt to work together in whatever way possible to come to an agreement (in writing) as to how to divide the property. Otherwise, the division of real property can get truly muddled. For example, if a couple cannot agree together as to how to divide the property, one of the legal remedies available for resolving ownership is through a “partition action”. A partition action is a suit filed in court, where one party requests that the court determines each party’s claim to the property and divides it accordingly. There are several ways in which the court can divide the property, including ordering a physical division where you each literally get ownership of different sections of the property, ordering that one party buy out the other party, or ordering that the property be sold with each party receiving their pro rata share of the proceeds. If you are arguing over a property that has a mortgage attached, a whole slew of obstacles can crop up as they are also considered a “party” and it is no longer just a case of the two of you owning something. Of course, again, such complex proceedings can be avoided if the parties can jointly agree by contract as to how to divide the property.

Now, when an unmarried couple terminates their relationship but only one party owns title to real estate, a myriad of new legal issues surface. The biggest being: does the party who does not own the property have any rights or interests in that property? The legal answer to that question is an unequivocal….maybe. Without an express written agreement outlining each side’s interests, a non-title holder partner is left to his or her next best legal position – asserting that an oral express agreement existed. This is a tough road to take, but for a partner who expended significant time, resources, and money into the couple’s home and who may be left with nothing, this is something to consider. There are numerous legal and equitable theories under which you could proceed, including, but not limited to, implied contract theories and unjust enrichment.

  • An implied contract is a legal substitute for a contract; it is a “contract” agreed to by non-verbal conduct and is based on a promise that is inferred in whole or in part from the parties’ conduct.
  • The “doctrine of unjust enrichment” is based on the premise that one party has unjustly retained a benefit to the other party’s detriment, and that party’s retention of the benefit would violate fundamental principles of justice, equity, and good conscience.

So, for example, a couple decides to move into together. One partner purchases the home under her name only, but the other partner contributes a portion of the purchase price and helped design, decorate, and/or maintain the home. If the partner who owns the home simply tries to kick her partner out after they break up, a court may find that allowing her to do so would result in her being unjustly enriched to the other party’s detriment (because she would own the house and had received all the perks of the decorating etc that the “non-owner” contributed). As a fair remedy, the court could impose what is referred to as a “constructive trust” on half of the value of the home, forcing the home owner to transfer that share of the property to her partner. This would provide that partner some relief in an otherwise grim situation.

For more information about your potential property rights after a break-up, consider setting up an appointment at the Center on Halsted’s Legal Clinic, reaching out to Lambda Legal’s help desk, or contacting a licensed attorney.

Leslie A. Gutierrez
Leslie Gutierrez is an Associate with the Litigation Practice Group at Clark Hill. Leslie practices general litigation, with a focus on commercial litigation, trust and estate litigation and administration, and real estate matters. Leslie earned her degrees from the University of Michigan and the Loyola University Chicago School of Law.

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