Cohabitation

Cohabitation refers to situations in which two people live together, and are involved in an emotional and/or sexually intimate relationship. The term is commonly used regarding unmarried couples who choose to live together without officially getting married. Over the years, social values have changed in the U.S., making this an increasing popular option for people in a long term or permanent relationship.

Cohabitation before marriage allows couples to save money on living expenses, combine their resources, and raise children together. It does raise certain legal issues, however, in the event they separate or end their living arrangement, especially if they have commingled their assets or debts. To explore this concept, consider the following cohabitation definition.

Definition of Cohabitation

Noun

  1. The act of living together as if married, without legally getting married.

Origin

1520-1530        Late Latin cohabitāre

Cohabitation Agreement

A couple who lives together, but does not intend to become married, can create certain legal documents that protect their rights. These documents, which outline the rights of each partner should the relationship dissolve, are known as “cohabitation agreements,” or “non-marital agreements.” As unromantic as a cohabitation agreement or cohabitation contract may sound, it helps avoid sticky legal issues that may arise during, or after the relationship by addressing financial arrangements, and stating who owns certain property before entering into the relationship, and clarifying the disposition of property obtained during the relationship.

Issues to Address in a Cohabitation Contract

A cohabitation contract does not need to be complicated, but should address how certain issues are to be handled during, and in the event of dissolution, of the relationship. These include:

  • Property acquired during relationship – define how such property is to be treated, such as whether both parties will own 50 percent of the property, or does whoever bought the property own it.
  • Expenses – define how all day-to-day living expenses will be paid, and describe how periodic and unexpected expenses are to be handled. For example, state whether income is to remain separate, with each party responsible for certain expenses, or if income is to be commingled, and the bills paid from the joint account.
  • Separation or Death – define what happens when the relationship ends, whether to separation or death. Specifically define the disposition of financial assets, jointly acquired community property, real property, and debts.

Cohabitation and Division of Property

When a married couple divorces, they must go through the process of dividing their property, which often requires the help of the legal system if they cannot agree on their own. In many states, the legal guidelines that pertain to marriage do not apply to cohabitation, even though separating often creates the same level of conflict. While each party may keep the property they can prove they owned prior to living together, the division of property obtained during the relationship may take the help of a mediator or the court. There is also the issue of dividing jointly incurred debts.

For example, if the couple purchased a house together, both paying half of the down payment, and sharing the monthly payments 50/50, yet only one partner’s name appears on the mortgage and the title, a battle between the parties may ensue. Financial issues may become even more of a problem if one partner was fully financially supported by the other partner, and is not accustomed to supporting himself.

In the event of the death of one partner, the property obtained before the relationship, or any property not listed in both of the parties names may be awarded to his or her next of kin, rather than to the cohabiting partner. To prevent this from happening, unmarried cohabitants should have a will or estate plan.

Cohabitation and Parental Rights

It is not uncommon for cohabiting couples to have children together. When children are born to a married couple, the spouses are assumed to be the biological parents of the child. Cohabitation laws look on parenthood differently. When a child is born during cohabitation, paternity is not assumed, and the father may have to prove, in the event of separation, that he is the biological father to have parental rights. Alternatively, the mother may have to prove that her cohabitation partner is the father of the child, in order for him to be held to his legal and financial obligations to the child. Once paternity has been established, the parents have the same obligations to the child as they would have had if they had been married.

Common Law Marriage

Nine states and the District of Columbia recognize common law marriage, which means that cohabiting couples may find themselves subject to these rules and the need to obtain a legal divorce should they separate. Certain requirements must be met for the couple to be considered married under common law, including:

  1. The parties lived together for a minimum period of time, as specified by state law
  2. The parties held themselves out to be a married couple
  3. The parties had the intent to be a married or permanent couple

In the event one cohabitation partner claims a common law marriage, he or she must prove these points using commonly accepted evidence, including:

  • Jointly filed tax returns
  • Jointly held bank accounts or credit card accounts
  • Jointly purchased property, held in both parties’ names
  • One party regularly using the other’s last name
  • Either party naming the other as their “spouse” on health insurance or life insurance policy, or pension
  • Testimony by friends, family, or coworkers that the parties represented themselves to be married, or a permanent couple

In the event a couple intends to live together for some time, but do not intend to be recognized as being in a common law marriage, they should draw up some type of agreement or contract stating this, as protection against legal issues that may arise in the future.

Domestic Partnership

A domestic partnership may seem similar to cohabitation, but it is in fact different. A domestic partnership is a relationship in which the couple does not marry, but registers as partners with in the city or state in which they reside. Domestic partnerships are most commonly used among same-sex couples in states that do not allow same-sex marriage. Such arrangements afford the parties with certain limited rights of married couples, and may be claimed for federal tax purposes.

Related Legal Terms and Issues

  • Contract – A written or spoken agreement between two or more parties that is enforceable by law.
  • Estate Plan – A plan made by a person in which he or she specifies how assets are to be transferred after death.
  • Will – A legal declaration expressing a person’s wishes after death.
  • Intent – A resolve to perform an act for a specific purpose; a resolution to use a particular means to a specific end.
  • Obligation – A promise or contract that is legally binding; the act of binding or obliging oneself, as in a contract.

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