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Your Rights as a Putative Spouse in Illinois


On rare occasions, couples who move forward with plans to divorce find that their marriages were never valid marriages in Illinois, placing them in the category of “putative marriage.” A putative marriage creates a number of legal concerns in the divorce proceedings, because the marriage agreement was never valid to begin with and another legal spouse may exist. Those who find themselves in the role of putative spouse need to understand their rights and how to protect them as they move forward.


What Is a Putative Spouse?

Under Illinois marriage law, a putative spouse is defined as a spouse that went through a marriage ceremony and believed they were legally married, but due to a technicality, was not actually in a legal marriage. This special legal designation allows the courts to give the putative spouse legal rights, even though the marriage was never a legal one. It is an important protection for people who are unaware of the problem before getting married.

Someone can end up in the role of putative spouse for a number of reasons. A common reason is the existence of another legal spouse, which may occur if the prior marriage was not fully dissolved in divorce. The putative spouse is often unaware of the technicality and enters into the marriage relationship expecting that it is valid and legal, only to find later that it is not.

Does a Putative Spouse Have Rights?

Illinois marriage law creates the role of a putative spouse in order to convey rights to this spouse in this strange circumstance. Under the current law, the putative spouse is entitled to the same marital property rights in divorce as a legal spouse. This includes the right to divided marital property, the right to spousal maintenance, and the right to child support.

If another legal spouse exists, the putative spouse retains these rights. However, so does the prior spouse. The courts will then work to divide the assets in a fair and just way based on the circumstances of the marriages.

Finding out that one is a putative spouse does create some legal hurdles, but Illinois law provides protections in these cases. Working with a family law attorney will help individuals get past these hurdles and move forward with life after divorce, with the confidence of knowing that their rights have been fully protected.

Uncontested divorce lawyer Denise Erlich is passionate about helping divorcing couples in the greater Chicagoland area transition to their new life as seamlessly as possible. Ms. Erlich patiently guides her clients through every step of the divorce process and provides clients with candid advice about their case and legal options, so they can make informed decisions about their future.

Years of Experience: More than 20 years
Illinois Registration Status: Active
Bar & Court Admissions: Illinois State Bar Association U.S. District Court, Northern District of Illinois
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