Protecting the Interests of Unmarried Adults Who Cohabitate

While marriage laws expanded in 2015 to include same-sex partners, some opposite-sex and same-sex couples may still prefer to live together without being legally married. In the past, co-habitation may have resulted in the recognition of a common-law marriage. Today, only 8 states recognize newly created common-law marriages and, in many cases, only for limited purposes. While cohabitation may have several advantages, it also has some significant potential drawbacks, particularly when a couple separates.

Among the advantages of co-habitation is the simplicity in establishing or dissolving a marriage-like relationship. Unlike marriage, a couple does not need to obtain a license, hold a ceremony with witnesses or say any particular words to establish the relationship. Similarly, if the relationship ends, particularly if there aren't any children involved, the former partners can simply walk away without going through a divorce process required to dissolve a marriage.

However, breakups can bring legal complications if one partner is financially dependent on the other or if property, debts or children are involved. A few states, such as Washington and Oregon, have enacted laws that give court access to cohabitants and that treat property division, child support and custody issues for cohabitants similar to divorce.

Most states, however, have no specific process or guidelines to deal with these issues, and the laws that may provide some protection for spouses going through a divorce provide no safeguards for separating cohabitants.

There are ways by which cohabitants can acquire rights and protections similar to those enjoyed by a married couple. Some areas can be adequately addressed through careful record keeping while other issues, such as major property distribution or post-breakup financial support, may require signing a co-habitation agreement.

Medical decisions. Cohabitants typically are not given access to a partner's medical records nor can one partner make medical decisions for the other. Those decisions will usually be restricted to family members. The solution is for cohabitants to complete written health care directives and health care powers of attorney giving the other partner the right to access medical records and the power to make important health care decisions on the other partner's behalf.

Financial decisions. While sharing bank accounts can be accomplished simply by completing paperwork at the bank, to ensure that each partner can make important financial decisions on behalf of the other, each party should create a durable power of attorney giving the other partner appropriate authority.

Inheritance. When a person dies without leaving a will, state intestacy laws outline how property is to be distributed, with spouses, children, parents and grandparents receiving priority. Typically, an unmarried cohabitant will not automatically be entitled to receive any property. The solution is for each partner to specifically name the other in a will and designate the specific property that the partner would receive.

Property and Debt Distribution. When a married couple divorces, property and debts are allocated based on community property or equitable distribution principles. When cohabitants separate, most states do not apply similar guidelines. Partners are often left to find their own solutions.

Following a few guidelines can help to minimize conflict. In general, do not co-mingle financial accounts and debt. Each partner should maintain a separate bank account. Property purchased jointly should be held in both parties' names. Property purchased separately should be titled in the name of the person making payments. Each person should keep records documenting personal financial contributions to property that is jointly held or held by the other person.

Any checks written by one partner to the other should include a notation on the check as a "loan" or "gift" to avoid any interpretation that the payment was intended as financial support. Be careful about co-signing for a debt incurred by your partner. You could be held liable to pay even after a breakup.

Post-breakup financial support. Remain financially independent of your partner. In a divorce, one spouse may be required to pay alimony to help support the less financially secure spouse. When cohabitants breakup without a contract, nothing requires one partner to support the other. To help avoid being obligated to pay "palimony" after a breakup, cohabitants should avoid using the same last name or portraying their relationship to the public as a marriage.

Child custody and support. Children born during a marriage are presumed to be the legal offspring of the married couple, and both parents have an immediate legal obligation to financially support the child.  In a situation where parents are unmarried but cohabitating and a child is born, the biological father does not have a legal presumption of paternity. Paternity must often be determined by DNA testing as part of a legal proceeding. Until paternity is legally established, the father does not have a legal obligation to support the child.

A cohabitation agreement is a written document signed by partners before moving in together. Much like a prenuptial agreement, the typical agreement can establish how the parties will treat property purchases and disposition, debt payments and child support should children become involved, and payment of financial support by one person to the other in the event of a breakup.

These agreements cannot establish binding future child custody arrangements. The agreement might embody a suggestion, but courts always retain the ultimate responsibility to make custody and visitation decisions that serve the best interest of the child.

New Jersey provides an excellent example of the states that recognize the enforceability of cohabitation agreements, which may include a promise to provide financial support or provisions allowing joint use of separately owned property. For the agreement to be enforceable, it must be in writing and signed by the person making the promises. Both parties must have had the opportunity to obtain advice from separate attorneys before signing.

Cohabitants often believe that simply living together will avoid the potential for future legal obligations. However, despite the best of intentions, complications can and often do arise. Anyone considering a cohabitation arrangement would be wise to consult a family law attorney who can provide advice on how to avoid legal entanglements and how to best protect important interests. If you have any questions regarding cohabitation and family law, call the Law Offices of Peter Van Aulen at 201-845-7400 for a free initial consultation.