As laws and popular culture continue to evolve toward a growing recognition of legal rights for same-sex couples, the number of acknowledged same-sex couples in Illinois has in turn increased. In the year 2000, there were an estimated 22,887 same-sex couples residing in Illinois; by 2005, that number increased to 30,000.1 As a result, for the family law practitioner, whether you will be asked to assist a former partner to a same-sex relationship is less a question of if but rather when.
Issues to be addressed and resolved between same-sex couples are the same as those between divorcing spouses—the allocation of assets and liabilities and questions of custody of and visitation with children of the relationship. However, the fundamental difference between terminating a marriage versus a same-sex relationship is the law under which these issues can be resolved. To this end, the following provides an overview of the legal issues the family law practitioner must consider when representing a party to the dissolution of a same-sex relationship.
Financial Issues: Contract & Equity
Despite numerous recent attempts to introduce civil union legislation in Illinois providing committed same-sex couples with the same legal protections afforded to spouses of the opposite sex, to date no such legislation has been enacted.2 Thus, Illinois courts are currently precluded from applying the factors contained in the Illinois Marriage and Dissolution of Marriage Act to actions involving the termination of same-sex relationships, or any long-term romantic relationship, when allocating assets and liabilities, and instead, must decide such cases based strictly upon contract theories, and possibly business partnership theories.
Depending on how savvy the couple was in defining their legal relationship at its onset, the parties may or may not have formed written agreements concerning disposition of property acquired during or prior to their cohabitation. For example, just as some engaged couples enter into premarital agreements prior to marriage, some same-sex partners enter into "cohabitation agreements," as they are often referred to, which are similar in form and substance to premarital agreements but do not have the same statutory backing, i.e., the Illinois Uniform Premarital Agreement Act.3
Illinois courts have not yet specifically addressed the enforceability and validity of such agreements. However, so long as the consideration for a cohabitation agreement is not sexual relations between the parties4 and the agreement otherwise comports with the statute of frauds and other contractual requirements precedent to a valid contract, such an agreement would likely withstand judicial scrutiny.
Even if a same-sex couple has not entered into a written cohabitation agreement, it is quite possible, depending upon the length of the couple’s relationship and the extent to which they have intertwined their financial lives, that the couple may have specifically titled assets (real estate, car titles, bank accounts, etc.) into the parties’ joint names. If assets are jointly titled, then the division of said assets is relatively straightforward and does not require consideration of the underlying cohabitation relationship. For example, real estate held in a form of co-ownership can be partitioned pursuant to the Illinois Code of Civil Procedure if at least one of the co-owners so petitions the court.5 However, if jointly titled assets are easily liquidated or can be cashed out or withdrawn by only one party, then the cautious practitioner should take the appropriate steps, including seeking injunctive relief, if necessary, to ensure that neither party has the ability to unilaterally cash out said assets before judicial division or partition of same.
What relief is available to the party who allowed affairs of the heart to reign over affairs of the head by contributing financially to a partner’s assets without the benefit of the asset being titled in the parties’ joint names? The party who contributed financially to the acquisition of assets during a cohabitation relationship but never obtained formal legal interest in said assets has little option but to seek equitable relief through the courts. Where there is no formal agreement or legal title vested jointly in the parties, a party seeking an equitable share of assets titled solely in the other partner’s name must proceed under remedies for breach of contract (quasi or implied), while steering clear of seeking rights that are intimately related to the cohabitation and therefore resemble those found in dissolution of marriage proceedings.6 Such equitable remedies may include imposition of a constructive trust; breach of fiduciary duty; unjust enrichment; and relief related to dissolution of business partnership.
A legal contract defining relationships? Is this possible in non-marital, romantic relationships? This question is posited and somewhat answered in Hewitt v. Hewitt.7 The plaintiff in Hewitt lived with the defendant for many years in a marriage-like relationship but without having formally married. The plaintiff bore and raised the children of the relationship and supported the defendant financially and emotionally in furtherance of the defendant’s career advancement. After the relationship broke down, the plaintiff filed suit for implied contract, constructive trust and unjust enrichment. The Illinois Supreme Court rejected the plaintiff’s claims against the defendant and instead characterized her cause of action as an attempt to garner the same rights for unmarried persons as parties to a valid marriage entered into by the laws of the State of Illinois.8 Ultimately, the court found that the plaintiff’s claims were unenforceable as they contravened the public policy of "disfavoring the grant of mutually enforceable property rights to knowingly unmarried cohabitants".9 Nevertheless, the Illinois Supreme Court acknowledged that equitable relief might be available to parties who form "valid contracts about independent matters, for which it is said the sexual relations do not form part of the consideration."10
As a result, subsequent appellate court decisions center around this principal pronounced in Hewitt, that cohabitating parties may form contracts for their rights and responsibilities, provided that sexual relations are not the basis for consideration. Interestingly, the Second District Court of Appeals has been the only state appellate court to establish a line of cases relating to claims for equitable relief after a cohabitation relationship has ended. The Second District first addressed this issue in Spafford v. Coats, in which the plaintiff pursued her claim for impression of a constructive trust arising out of an automobile titled solely in her lover’s name but for which she paid the entire purchase price.11 There was neither an oral nor written agreement between the parties as to their respective rights to property acquired by them during their relationship or property brought into the relationship by either party.12 However, the plaintiff alleged that the sole reason the automobile was placed in her partner’s sole name was for a reduction in insurance premiums.13 The Second District Court of Appeals found that the plaintiff’s claims were "substantially independent of the non-marital relationship of the parties and are not based on rights arising from their cohabitation," and therefore, the trial court erred in denying the plaintiff equitable relief.14
Seven years later, the Second District next had the opportunity to consider equitable relief requested by an unmarried partner whose cohabitation relationship ended, in Ayala v. Fox.15 In that case, the plaintiff paid $48,000 for the down payment on a house occupied by her and her boyfriend. The defendant promised to title the home in the parties’ joint names and that the plaintiff would be entitled to one-half of the equity in the home should the parties stop residing together. The parties lived in the home for ten years, but the defendant never transferred title into joint tenancy, nor did he pay the plaintiff half of the equity in the home.
Despite extremely similar factual scenarios surrounding methods of contribution by the complaining party to the asset at issue in both Ayala and Spafford, the Ayala court affirmed the trial court’s denial of the plaintiff’s request for relief and distinguished the case from the Spafford decision based upon the Spafford plaintiff’s request for the specific vehicles she had paid for, whereas the Ayala plaintiff sought recovery "based on rights closely resembling those arising from a conventional marriage."16
The next cohabitation case brought before the Second District closely resembled the facts in Ayala. In the matter of Kaiser v. Fleming, the plaintiff took her lump-sum payment from a previous divorce settlement and paid off her live-in boyfriend’s mortgage.17 After the defendant refused to refund the plaintiff’s money, she filed suit, asking the court in count one to impose a constructive trust and seeking in count two a judgment in the exact balance she used to pay off the defendant’s mortgage. The trial court dismissed both counts of the plaintiff’s complaint. On appeal, the Second District found that it was error for the trial court to dismiss count two, in that the plaintiff had alleged a cause of action based upon implied contract or quasi-contract.18 The court distinguished the instant case from its previous decision in Ayala in that, "Unlike the plaintiff in Ayala, the plaintiff here alleged rights substantially independent from her nonmarital relationship with the defendant."19
Lest one think that the disparate outcomes but virtually identical facts of Ayala and Kaiser result less from the type of relief sought by the plaintiff than from the Second District’s growing acknowledgment of the need to address financial issues attendant to the dissolution of nonmarital relationships, the Second District most recently revisited the issue in Costa v. Oliven.20 In that case, the plaintiff alleged that he had a "quasi-marital" relationship with the defendant, in which he stayed home to raise the parties’ child and by doing so enabled the plaintiff to further her career.21 The defendant asked the court to impose a constructive trust upon property owned by the defendant, sought an accounting of the defendant’s assets and income and sought an award of punitive damages.22 The Second District Court of Appeals upheld the trial court’s dismissal of the above-described counts, basing its ruling entirely on the rationale outlined in Hewitt.23
The above line of cases illustrates the peril for the family law practitioner in seeking equitable relief for a party to a cohabitating relationship when one partner held much or all of the financial power in the relationship. It is therefore essential that the focus of any pleadings be on the financial relationship between cohabitating couples through claims related to contract and breach of contract, rather than seeking equitable relief based upon the couple’s unmarried but conjugal relationship, in order to obtain financial relief under Illinois law.
Financial Issues: Implied Business Partnership
Whether intended or not, a romantic relationship, be it a long-term same-sex union or traditional marriage, carries many of the same characteristics of a business partnership. Assets are pooled to be utilized for the benefit of the partnership. The partners share equally in the gains and losses of the relationship. Often, the partners operate out of one primary physical location. Expenses and liabilities are covered by the partners, in proportion to their abilities to do so. The goal is to create a better financial situation for the partners or to improve the livelihood of the partners, or both. This is the situation contemplated by the Illinois Uniform Partnership Act.24 So, when the partnership, in this same-sex couple situation, has come to an end, what is a partner to do? In a business setting, one partner may petition the court for expulsion of a partner whenever a partner engaged in wrongful conduct that adversely and materially affected the partnership business.25 Or, one partner may petition the court for expulsion of a partner whenever a partner willfully or persistently committed a material breach of a duty owed to the partnership or the other partners.26 Though in a marriage context, Illinois has removed the fault requirements for obtaining a divorce, the grounds do remain. When the parties can never marry to begin with, this may be a viable option.
Proceedings to dissolve a partnership may seem less than appropriate, but courts have and will continue to be asked to look at the business model of dissolution of partnerships to dissolve partnerships involving unmarried cohabitants.
How should the family law practitioner proceed as to a client who was legally married to a person of the same sex in another state or entered into a valid civil union in another state but is now an Illinois resident and seeks to dissolve the marriage or civil union in this state? Illinois appellate courts have not yet been prevailed upon to address dissolution of same-sex marriages, civil unions or domestic partnerships entered into in states that have legalized such unions by persons who meet Illinois residency requirements at the time of dissolving such unions. However, Illinois has enacted its own "mini" version of the 1996 federal Defense of Marriage Act, whereby the Illinois Marriage and Dissolution of Marriage Act prohibits marriages between two persons of the same sex.27 While no Illinois court of appeal has addressed this issue, in 2000, then-Illinois Attorney General James Ryan issued an advisory opinion suggesting that Illinois is not required under the Full Faith and Credit Clause of the United States Constitution to recognize civil unions or marriages entered into in accordance with the laws of another state.28 In this opinion, the attorney general reasoned that because the Full Faith and Credit Clause of the United States Constitution does not require one state to recognize another state’s law if the other state’s law is contrary to the determining state’s public policy, Illinois would not be required to recognize a same-sex marriage or civil union legalized in another state, as recognition of same contravenes Illinois’ public policy of prohibiting marriage between two members of the same sex.29 As a result, it is unlikely that a party to a same-sex marriage or civil union that would otherwise be valid in another state would be able to dissolve the marriage or civil union under the Illinois Marriage and Dissolution of Marriage Act.
Another consideration in dissolving a same-sex partnership is whether the couple has registered as such with the few jurisdictions in the state providing for such registrations. Currently only the City of Chicago, the Village of Oak Park and Cook County have domestic partnership registries for their citizens.30 If a party has registered his or her domestic partnership with one of these locales, he or she will need to terminate the partnership in accordance with the locality’s legislation.
Alternative Options for Dispute Resolution
If your client and his or her partner desire to terminate their relationship without resorting to filing suit and pursuing the legal avenues described above, then other options are available to the parties. While traditionally used by divorcing parties, the collaborative process is a means by which same-sex families can likewise resolve their issues outside of the judicial system with the assistance of specially-trained collaborative law attorneys. Thus, the parties need not rely upon what "the law" says about their legal relationship but can reach legally binding settlement agreements that are fair to both parties without court intervention.31 Similarly, mediation is a readily-available option to same-sex couples and can provide the parties with the privacy and the sensitivity they might be seeking, as well as an outlet to resolve their issues without fear of the limitations currently imposed by the laws of the State of Illinois. Care should be taken, however, to ensure that the collaborative law attorneys or mediator selected by the parties are sensitive to the unique issues attendant to the dissolution of a same-sex relationship.32
The laws relating to same-sex relationships are constantly evolving, both on a national and state level. As more and more states are asked to address the legality of same-sex marriage and related issues, a greater body of law will be established to govern how such relationships are to be treated legally. However, until the law catches up with the need for definitive legislation on issues related to same-sex relationships, family law practitioners who counsel parties to such relationships must tread carefully and focus on addressing with the court the financial relationship between the parties while avoiding seeking equitable relief based solely on the cohabitation itself.
1 Census Snapshot Illinois, The Williams Institute, UCLA School of Law, September 2007.
2 See, e.g., HB 2234, 96th Gen. Assem., Reg. Sess. (Ill. 2009), which was most recently re-referred to Rules Committee on May 31, 2009 and which, if enacted, would entitle a party of a civil union "to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law."
3 750 ILCS 10/1 et seq. (West 2009).
4 Hewitt v. Hewitt, 77 Ill.2d 49, 394 N.E.2d 1204 (1979).
5 735 ILCS 5/17-101 (West 2009).
6 Ayala v. Fox, 206 Ill. App. 3d 538, 564 N.E.2d 920 (2d Dist. 1990).
7 77 Ill.2d 49, 394 N.E.2d 1204 (1979).
9 Id at 66, 1211.
10 Id. at 59, 1208.
11 118 Ill. App. 3d 566, 455 N.E.2d 241 (2d Dist. 1983).
14 Id. at 572, 245, 215.
15 206 Ill. App. 3d 538, 564 N.E.2d 920 (2d Dist. 1990).
16 Id. at 542, 922. The plaintiff’s complaint involved five counts: The first was based on promissory estoppel and requested a finding of breach of contract; the second asked the court to declare an equitable lien on the property based upon unjust enrichment; the third alleged that the parties "lived together as husband and wife" and therefore claimed that the defendant owed the plaintiff a fiduciary duty and subsequently breached that duty; the fourth was based on unjust enrichment and related to the "husband-wife" relationship; and the fifth was based upon an oral partnership agreement and requested winding up the partnership and a distribution of the partnership assets. Id. at 540, 920-921.
17 315 Ill. App. 3d 921, 735 N.E.2d 144 (2d Dist. 2000).
19 Id. 926, 148.
20 365 Ill. App. 3d 244, 849 N.E.2d 122 (2d Dist. 2006).
24 805 ILCS 206/1 et seq.
25 805 ILCS 206/601(5)(i) (West 2009).
26 805 ILCS 206/601(5)(ii) (West 2009).
27 Defense of Marriage Act of 1996, 28 U.S.C.A. § 1738(c) (West 2009); 750 ILCS 5/212(a)(5) (West 2009)
28 2000 Ill. Atty. Gen. Op. 017.
30 See http://www.cookctyclerk.com/sub/domestic_partnership_registry.asp; http://www.oak-park.us/Village_Clerk/Domestic_Partnership.html.
31 See, e.g., http://www.collablawil.org for more information.
32 Hanson, Mark J., Moving Forward Together: The LGBT Community and the Family Mediation Field, 6 Pepp. Disp. Resol. L.J. 295 (2006).
Leah D. Setzen is an associate with the family law firm of Grunyk & Associates, P.C. in Naperville, Illinois. She received her Bachelor of Arts Degree summa cum laude and Phi Beta Kappa from the University of Illinois in 1997, and her Juris Doctorate from the University of Illinois in 2000, where she graduated cum laude. Ms. Setzen is a member of the DuPage County Bar Association, where she co-authors the Family Law Section’s Case Updates, and the Will County Bar Associations. Ms. Setzen is also a member of the board of directors of the University of Illinois College of Law Alumni Association and is the chairperson for the 2010 University of Illinois College of Law Student-Alumni Career Conference. Ms. Setzen would like to thank Sean McCumber and Kelly Peterson for their assistance in the preparation of this article.