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Relationships & the Law Today
A recurring column
by Jillian B. Sommers
2016-10-19

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The Illinois Supreme Court recently held in Blumenthal v. Brewer, 2016 IL 118781, that couples who are not married to each other have no right to maintenance after ending the relationship, even if the couple has been together for decades and rely on one another financially.

Specifically, in 1981, Jane Blumenthal, then a medical student, and Eileen Brewer, then a law student, bought a home together and committed themselves to each other as domestic partners. Together they had three cross-adopted children, all of whom had the same last names, and both invested money into Blumenthal's private medical practice. Brewer cared for the couple's children, and later became a judge, while Blumenthal worked as a successful physician at her medical practice. Given Brewer's time spent raising the couple's children while Blumenthal worked to support the family and expand her medical practice, Blumenthal was significantly wealthier than Brewer by the time the couple decided to end their relationship in 2008.

When the relationship ended, Blumenthal left the family home, and Brewer assumed all obligations therefor. However, Blumenthal sued Brewer for partition of the home, and Brewer asserted counterclaims for the home and other forms of spousal support, including a portion of Blumenthal's earnings and a share in her medical practice, arguing that assets earned during the relationship should be divided equally between the two parties. Blumenthal moved to dismiss each of Brewer's counterclaims based on a prior Illinois Supreme Court holding, Hewitt v. Hewitt, 77 Ill. 2d 49 ( 1979 ).

In Hewitt, the Illinois Supreme Court determined that an unmarried heterosexual couple that had been living a conventional family life together for over 15 years, but had never married, had no rights to one another's property attained throughout the course of the relationship. The court reasoned that "it is [not] appropriate for this court to grant legal status to a private arrangement substituting for the institution of marriage sanctioned by the State." Based upon Hewitt, the trial court in Blumenthal determined that because the couple was not married, Brewer had no right to Blumenthal's property earned throughout the relationship.

On appeal, the Illinois Appellate Court overruled the trial court, holding that the court was "no longer justified" in relying on Hewitt, given that public policy in Illinois had changed with regard to non-marital cohabitation and non-marital children. However, Blumenthal appealed to the Illinois Supreme Court, which reversed the Illinois Appellate Court's holding based upon the Illinois Legislature's intent. The court provided that:

"While the United States Supreme Court has made clear that 'the Constitution ... does not permit the State to bar same-sex couples from marriage on the same terms accorded to couples of the opposite sex' ( Obergefell v. Hodges, 135 S. Ct. at 2607 ), nothing in that holding can fairly be construed as requiring states to confer on non-married, same-sex couples common law rights or remedies not shared by similarly situated non-married couples of the opposite sex. Legislatures may, of course, decide that matters of public policy do warrant special consideration for non-married, same-sex couples under certain circumstances, notwithstanding the fact that the institution of marriage is available to all couples equally. What is important for the purposes of this discussion is that the balancing of the relevant public policy considerations is for the legislature, not the courts. Indeed, now that the centrality of the marriage has been recognized as a fundamental right for all, it is perhaps more imperative than before that we leave it to the legislative branch to determine whether and under what circumstances a change in the public policy governing the rights of parties in non-marital relationships is necessary."

Accordingly, the Illinois Supreme Court held that Brewer could not assert her counterclaims against Blumenthal, as she had no interest in Blumenthal's assets.

The Blumenthal holding suggests that same-sex couples who are in long-term relationships and share residences or other financial assets should consider marriage or entering into a civil union, or executing either pre-nuptial or post-nuptial agreements, to protect the equitable distribution of those assets earned throughout the duration of their relationship.

If no actions are taken and a couple does not marry or enter into a civil union, those individuals, under current Illinois law, will be unable to assert an interest in their significant other's property, regardless of the length of the relationship or the couple's financial arrangements.

If you are interested in learning more about how to protect you and/or your significant other's property rights, please contact any of Clark Hill's experienced attorneys.

Jillian B. Sommers is an Associate in the Litigation Practice Group Clark Hill PLC. Jillian helps individuals, families, and closely held business plan for and resolve complex business decisions and transfers of wealth.


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