While the marriage rate is at it’s lowest level in four decades, cohabitation between non-married partners has increased 1,150 percent in the last 40 years. A recent USA Today article attributes this trend to twenty and thirty-somethings being disillusioned by their parents’ divorcing. Others say it is an exercise in freedom from the rules and regulations of marriage. Or maybe it is cold weather (Alaska has the highest percentage of unmarried couples living together). Regardless, cohabitation is a rising trend and nearly half of all couples live together for some period of time before walking down the aisle.
Webster’s dictionary defines cohabitation as “living together as or as if husband and wife.” In recent years, this concept has expanded to include any two partners who have integrated their residence, property and daily lives. It is often seen as a starting point for people headed toward marriage, but can also be a final destination for couples not wanting the social, personal and legal commitment that marriage represents.
There are a couple of critical factors that must be understood when approaching cohabitation:
Know Your Rights…Or Lack of Them:
Even though you may regard your partner as a family member, the law usually does not and as a result, your partner may not be taken care of in the manner in which you intend. For example, if you die without a will, your property generally will pass to your next-of-kin and not your partner. Paradoxically, the law may provide certain benefits for your partner that you had no intention of giving to him or her. Today, some courts are using equitable doctrines to apportion assets between cohabitants to prevent hardship and injustice. However, since these doctrines are vague, they are difficult and expensive to prove. Therefore, it only makes sense that you actively manage your situation and define your own partnership through a legal contract. Talk with your partner and a lawyer about both your expectations for the partnership to determine if a cohabitation agreement is a good choice.
Common Law Marriages Aren’t Common:
The difference between cohabitation and common law marriage is critical. If you are a cohabitant, you are legally considered single; if you are common law married, you are legally considered married to the same degree as if you had a ceremony. So, how do you know if you are married in the eyes of the law? Common law marriages are only recognized in certain states including: the District of Columbia, Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah.
In order to qualify as a common law marriage, you and your partner, in general, must agree either in writing or orally to enter into a husband/wife relationship and actually hold yourselves out as husband and wife and acquire a reputation as a married couple. If you and your partner live in any of the states that recognize common law marriages and do not want the state to consider you as married, you may be a candidate for a contract that would establish your relationship as cohabitants. This is important since a common law marriage is treated no differently than a ceremonial marriage, which would therefore entitle the surviving spouse to receive statutory benefits or a share of the deceased spouse’s estate in the event of death, even if that’s not what you had anticipated.
Common law marriages are typically limited to heterosexual couples and the “significant period of time” that couple must be existing in a marital-like situation is rarely defined and differs from state to state.