Family Law

What Is Cohabitation?

By Kristina Otterstrom, Attorney
The ins and outs of cohabitation.

Cohabitation Basics

Cohabitation isn’t a one-night stand or an occasional sleepover with your boyfriend or girlfriend. In the family law context, there's no set of hard and fast rules for what constitutes cohabitation, but generally, unmarried couples that live together in a long-term, committed relationship are considered to be cohabitating.

Cohabitation is legal, but local zoning laws sometimes prohibit two or more unmarried persons from sharing a residence. This can be a common situation in college towns. There are no laws directly aimed at protecting cohabitating couples, but there are anti-discrimination laws and criminal laws that protect some partners in specific relationships, such as LGBT couples and victims of domestic violence.

Cohabitation and Custody

Many unmarried couples that have children together cohabitate, since living together can often make parenting young children easier than living separately and trying to coordinate visitation. If you and your partner eventually end the relationship, you’ll have to determine custody and visitation issues—just as married couples do—but the specific issues you face and the legal process will be different. For example, if you're going through a custody battle as an unmarried father, you may be required to prove paternity or undergo DNA testing to show that you’re the biological parent. If a married couple divorces, there is an automatic presumption that both spouses are the legal parents of any children born during the marriage.

Cohabitation and Child Support

Similar to divorcing parents, when unmarried parents separate, they will also have to figure out who will have to pay child support. Child support always follows the child, which means that children are legally entitled to financial support from their parents. While the specific method of calculating child support will vary from state to state, in all 50 states and D.C., both parents have a legal obligation to support their minor children.

Cohabitation and Alimony

Many cohabitating couples end up getting married and divorced. Some of these couples spent more time cohabitating than actually being married. This matters when it comes to determining the amount and duration of alimony or spousal support. If you and your partner lived together, but never married, you won't be able to request alimony under the divorce laws in your state.

For married couples going through a divorce, spousal support is generally awarded in cases where one spouse has a clear financial need and the other spouse has the ability to pay. Depending on the laws of your state, spousal support may continue for only half the length of the marriage. This can be a difficult blow for someone who spent a decade or two cohabitating, but only a few years married. The alimony award would reflect only the years the couple was actually married rather than the total amount of time the couple was together.

In certain cases, years of cohabitation prior to marriage can actually make it more likely for a spouse to get alimony, because it shows financial dependence. You may want to hire a vocational expert to help make your case for support. However, in other cases, such as where there was a very short marriage, alimony may be unlikely.

In some states, such as California, unmarried partners that cohabitated may be able to make a claim for ongoing financial support similar to alimony, which is often referred to as "palimony." The specific laws vary from state to state, but generally, in order to convince a court that you're entitled to palimony, you will need to show the following:

  • you and your ex-partner were in a romantic, committed relationship
  • you and your ex-partner lived together
  • you and your ex-partner shared finances (such as bank accounts, income, and property)
  • your partner provided you with financial support during the relationship, and
  • there was an implied or express (written) agreement that your partner would continue to support you after the relationship ended.

Consult a local family law attorney if you have specific questions about spousal support or palimony in your case.

Questions for Your Attorney

  • My spouse and I cohabitated for 10 years before getting married. During the years we cohabitated I did most of the childcare, but not after we were married. How will this affect child custody in my divorce?
  • I cohabitated with my spouse for 18 years before we were married. We’ve only been married 3 years and now I want a divorce. Does this mean I won’t get alimony?
  • My spouse moved into my house when we first started cohabitating. It eventually became our marital home. How will the court divide the house when we divorce?
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