Every state in America has marriage and divorce laws that lay out each spouse’s rights and responsibilities in the event that a marriage ends. These laws offer stability of process and predictability of outcomes when couples divorce.
But if you’re in a serious and committed relationship with someone and you haven’t married (also called “cohabitation”), you don’t get the benefit of these laws. Under limited circumstances in some states, you may be able to seek financial support or a share of property from a former live-in partner, but for the most part, the law leaves it up to you to decide how things should look if you break up with your significant other.
If you’re not married to your partner, you should give thoughtful consideration to what you want to happen if your relationship ends. Entering into a cohabitation agreement, which is a formal, written contract laying out each partner’s obligations and expectations, is the best way for each of you to protect yourselves. But even then, cohabitation can have both benefits and drawbacks.
One of the biggest advantages to cohabiting is that if you break up, you can divide up your property however you like in a cohabitation agreement; whereas if you marry, you have to divide your property in conformity with the applicable marriage and divorce laws. If you enter into a cohabitation agreement, you have leg room to draft a flexible, mutually agreeable property division, and to specify things like who should be on what insurance policy.
There are other financial advantages to cohabitation too. It’s often cheaper to combine households than it is to live separately, and if you break up and you live in a state that doesn’t recognize “palimony” (meaning, a kind of alimony or maintenance paid after a serious, committed, non-marital relationship ends), you probably won’t be on the hook for paying support to a needy partner.
Simple cohabitation is often a plus for older people, who might lose access to other retirement interests (say, for example, a pension from a deceased former spouse) or health benefits (like Medicare or Medicaid), if they remarry and have a higher, combined income. Cohabitation can also benefit divorced people who receive alimony, because alimony often ends when the receiving spouse remarries. And some, though certainly not all, studies show that people who cohabit are happier and healthier, and that their relationships flourish.
Last, spouses have to meet certain requirements in order to enter into a legal marriage, but people who just want to cohabit don’t have to prove anything. You can have a serious, romantic relationship with whomever you want without encountering any rules or requirements, and you can end that relationship without going through a prolonged divorce.
Having a written cohabitation agreement is very important, but sometimes there are drawbacks to those agreements, as well as drawbacks to cohabiting itself.
For example, if you and your partner have children, your cohabitation agreement should take into consideration how you would like your children to be raised and financially supported. However, you should take into consideration that what you write about these matters in your cohabitation agreement is just a “wish list.”
If you and your partner wind up in a dispute about who should have custody and visitation and who should pay what for child support, your cohabitation agreement will have limited value, if any. Family law judges are obligated, above all else, to consider the best interests of a child at the time they are making these kinds of decisions. To the extent that your prior cohabitation agreement conflicts with the best interests of your children, courts can and will set it aside to make the final decision that best benefits your kids.
In most states, any child born during a marriage is presumed to be the legal child of the spouses. But if you and your partner have children while you’re unmarried, you’ll have to establish paternity of your child and confirm your parental rights and responsibilities with extra steps, like blood tests or court hearings.
Another drawback of cohabitation is that you have to take extra steps to make sure your estate goes to your partner in the event of your death. If you’re married, your spouse will automatically inherit your property. But if you’re not married, your estate will go to your next of kin, unless you've created a valid will and identified your partner as the beneficiary.
Finally, when you cohabit and later marry, you’ll find that, for legal purposes, it doesn’t matter how long you were together before you tied the knot. Marriage and divorce laws only apply from the date you marry, not from the date you became seriously committed to each other. This is the case regardless of whether you’ve entered into a formal cohabitation agreement.
For example, if you’ve been together with your partner for ten years and married in the eleventh year, your marriage is “official” on the date of your marriage in the eleventh year. This can have an effect on your ability to collect or pay things like alimony. In some states, you aren’t eligible for spousal support unless you've been married a certain number of years—let’s say, three years. This means that even if you were with your spouse for ten years before you married, you can’t collect alimony until you’ve been legally married for three years, regardless of how long you’ve been together and regardless of whether you have a cohabitation agreement.
A Final Word
If you’re cohabiting with someone you love and you don’t want to marry, consider stabilizing your situation by meeting with an experienced family law attorney and preparing a cohabitation agreement. A good lawyer can help you satisfy all the required formalities and draft a document that meets your particular needs. If you’ve been cohabiting and you’re considering marriage, get an attorney’s advice on how you can expect your legal situation to change.