Marriage vs. Cohabitation


Marriage vs. Cohabitation

When it comes to cohabitation, social norms are changing but the law has not always kept up.  Cohabitation was once widely seen as inappropriate, but a recent report by the U.S. Centers for Disease Control and Prevention found that three in four women in the U.S. lived with a partner outside wedlock before age 30.

Financial problems were the most cited reason why couples choose to cohabitate instead of spending the money to get married.  2015 data from the Pew Research Center found that only 61 percent of children live in a home with married parents. That number was 87 percent in the 1960s, and about seven percent of children now live in homes with cohabiting parents.

Legal consequences of marriage and cohabitation

Anyone considering cohabiting with a partner should take the time to understand the legal situation they are putting themselves in.

The law generally treats the property of each married spouse as being jointly owned.  That has real consequences. If a husband buys a new car, his wife will be entitled half the value of the car in a divorce or the whole car if the husband dies.  A cohabiting partner will generally not have any claim to a car purchased by the other partner.

This can be especially troubling in the case of a cohabiting partner that does not work outside the home.  Historically, this most commonly occurs when a wife quits her career to stay home and manage the household to support her husband’s career.  The law will generally rewards the homemaker with 100% of the family’s assets upon death or half the assets upon divorce.  A cohabiting partner, on the other hand, could wind up with nothing.  

The law in many situations will treat cohabiting partners no different than roommates.  

In many places, cohabiting partners can change that situation with simple cohabitation agreements.  For example, they can agree that certain items are jointly owned or how certain items will be divided if they split up.  These agreements can be tricky to get right though, and might not be legally binding at all in some states.  It always pays to consult a good lawyer if you have concerns.

Parents who are planning to not get married should be especially cautious.  Having a child will immediately create lasting legal commitments in a way that cohabitation will not.  

For example, parents are generally obligated to provide support for their children until they reach the age 18. So if cohabiting parents split up, one cannot just walk away and leave the other to parent. The parent that is not caring for the child will be on the hook for child support just as any divorcing spouse would be. So while a cohabiting partner can move out with few legal ties, a cohabiting parent cannot.  

Main differences:

  • Cohabitation can be ended simply and informally
  • Division of property, after the cohabiting parties split, may create even more conflict as to who gets what
  • Cohabiting parties do not have to support each other after they decide to split
  • When one cohabitant dies, his or her property will pass to whomever is named in the will (or will go his family members in case there is no will). The other partner cannot claim the estate.
  • The father of a child born to a cohabitant is not legally entitled to legal paternity

The bottom line is that America’s legal system was set up mostly for traditionally married-couple households.  Anyone deciding to cohabit should carefully consider their situation and local laws.  In many situations, it is prudent to get the advice of an attorney qualified to practice in your community, especially if there are significant assets involved.

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