If you are unmarried and live with a significant other, you are by no means alone. Increasing numbers of couples are choosing to live together without being formally married. Generally referred to in the law as “cohabitating,” the popularity of this living arrangement has many causes: the desire of many young people to marry later in life, high housing costs, and an increasingly broad social acceptance of such arrangements. Whatever the reason, if you have chosen to cohabitate, your decision has important legal implications.
Even though you may be very close to your partner, if you aren’t married, legally you aren’t family. There are many rights associated with marriage that aren’t extended to cohabitations. These include property settlements if the relationship ends, the opportunity to file joint tax returns, the right to receive certain government benefits owed to your partner (Social Security for example), and an automatic right to health and life insurance policies. Some of these rights can be acquired through affirmative actions, such as making your partner the beneficiary of your insurance policy. However, it is important to remember that legally you are otherwise strangers.
If you currently cohabitate or are considering it, you and your partner should talk about a cohabitation agreement. These are similar to prenuptial agreements in that they outline what will happen if the relationship ends, including the division of property, how debts will be split, and any support obligations. Cohabitation agreements should also summarize what will happen to the couple’s property upon the death of one partner and create a health care proxy or medical directive. Either clause allows you or your partner to make medical decisions on behalf of the other should it become needed.
Since family law does not regulate cohabitation agreements like it does marriage and prenuptial agreements, there is some flexibility in drafting. You should be able to tailor the agreement according to your own circumstances. Cohabitation agreements are enforced through general contract law, and as such, you and your partner should work with an attorney to draft an agreement that is both legally valid and a fair reflection of your desires.
If you and your partner plan to live together for an extended period of time, be aware that some state statutes allow for “common law marriages.” Common law marriage allows a heterosexual couple to be considered married in the eyes of the law without the formal steps. Only a minority of states recognize common law marriage today. If your state is one of these, you should speak with your attorney, especially if you are not interested in establishing common law status. Because common law marriage can be implied from your conduct, if you don’t want to be considered married, your attorney should draft an agreement explicitly stating that you and your partner are living together as unmarried cohabitants. If, on the other hand, you are interested in establishing a common law marriage, there are steps you will likely need to take: you must affirmatively agree to common law marriage, hold yourself out as married, and live together for an extended period of time (length varies between states). A valid common law marriage will create the same rights and obligations as an official marriage, without requiring the formal steps.
Cohabitation is becoming a common step in the modern dating process, and in some cases, an alternative to marriage. However, planning for your cohabitation doesn’t end after the boxes are all unpacked. Being aware of the law, and working with your partner and, when appropriate, your attorney, will ensure that both you and your partner are protected and don’t hit any legal road bumps.