Judge’s Breakup Draws Shots at Rusty Precedent

     (CN) — A doctor and judge trying to break up assets after their own split divided the Illinois Supreme Court over precedent from the 1970s on unmarried couples who live together.
     The case at hand pits gynecologist Jane Blumenthal against her ex, Eileen Brewer, a judge on the Cook County Circuit Court.
     Before they split in 2008, the couple had been together 27 years and raised three children.
     While Blumenthal’s bid for partition of the women’s home in South Kimbark was unremarkable, Brewer’s counterclaims proved controversial.
     Illinois does not recognize common-law marriages, and the 1979 case Hewitt v. Hewitt, as explained in the latest ruling, foreclosed “unmarried cohabitants from bringing claims against one another to enforce mutual property rights where those rights are rooted in a marriage-like relationship between the parties.”
     Brewer has fought to overturn this precedent so that she might claim a stake in Blumenthal’s medical practice, Gynecologic Specialists of Northwestern.
     As summarized in the latest ruling, Brewer argued that Hewitt dated back to a time in Illinois when “it was public policy to treat unmarried relationships as illicit.”
     A criminal prohibition on nonmarital cohabitation that was on the books pre-Hewitt is no longer a factor, and state law also prohibits “differential treatment of marital and nonmarital children.”
     In addition to no-fault divorce, the state also now has civil unions for both opposite-sex and same-sex partners, among significant protections for nonmarital families.
     The Illinois Court of Appeals had voiced support for Brewer’s counterclaims, finding Hewitt obsolete, but the Illinois Supreme Court vacated that ruling 5-2 last week.
     “Since marriage is a legal relationship that all individuals may or may not enter into, Illinois does not act irrationally or discriminatorily in refusing to grant benefits and protections under the Marriage and Dissolution Act to those who do not participate in the institution of marriage,” Justice Lloyd Karmeier wrote for the majority.
     “As noted in Hewitt and the line of cases that follow its holding, unmarried individuals may make express or implied contracts with one another, and such contracts will be enforceable if they are not based on a relationship indistinguishable from marriage,” the 29-page opinion continues. “Indeed, Hewitt did nothing more than effectuate the policy established by the legislature to prevent knowingly unmarried cohabitants from evading the statutory abolition of common-law marriage under section 214 of the Marriage and Dissolution Act by employing theories of implied contract to achieve the same result that would occur if common-law marriage were recognized. We, therefore, reject Brewer’s claims.”
     The ruling sparked a stinging dissent that calls Illinois “a clear outlier” when it comes to regulating how former domestic partners prevent unjust enrichment after breaking up.
     “In my view, there is good cause to overrule Hewitt,” Justice Mary Jane Theis wrote, joined by Justice Anne Burke. “The court’s decision in that case was clouded by an inappropriate and moralistic view of domestic partners who cohabit and founded upon legal principles that have changed significantly.”
     Citing significant changes to the legal landscape post-Hewitt, Theis quoted how the court questioned in that 1979 case: “What of the children born of such relationships? What are their support and inheritance rights and by what standards are custody questions resolved? What of the sociological and psychological effects upon them of that type of environment?”
     “Hewitt must be overruled because it is outmoded and out of touch with contemporary experience and opinions on cohabitation,” the ruling says.
     Theis said she would advance Brewer’s claim for restitution of funds Blumenthal used from the couple’s joint account to purchase her medical practice.
     An attorney for Blumenthal meanwhile insisted that the majority got it right, saying he was “surprised at the controversy this decision has generated.”
     “Brewer, although unmarried, was seeking relief that the Illinois Legislature has enacted only for married people who are getting divorced,” attorney Reuben Bernick said in an email. “The court’s decision was not based on some generalized disfavor of unmarried cohabitation but rather on the Legislature’s determination that only people who are married can use the remedies provided in the divorce statute.”
     Brewer’s attorney, Angelika Kuehn in Oak Park, said she was “disappointed in the ruling.”
     “This leaves so many Illinois couples who separate after building a life together without a way to divide the property they accumulated together,” Kuehn said in an email. “Unfortunately, where there are children, it is particularly harsh on the parent who had the primary responsibility for their care. This presents a real challenge to estate-planning attorneys.”

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