Some couples choose cohabitation and decide to live together without marrying. If a couple lives together outside of marriage, a breakup might create legal issues regarding the division of property. Although cohabitation laws generally do not establish property rights, couples may have property rights through cohabitation agreements or state laws on putative marriages and common-law marriages.
Property Rights Through Cohabitation
In general, cohabitation does not establish property rights for the parties involved. Persons living together, whether cohabiting romantic partners or roommates, may find that they have limited legal protections in the event of a breakup or disagreement. In contrast, married couples or registered domestic partners have property rights established by state law. In the event of a divorce or legal separation, property distribution laws determine the division of assets and debts between spouses or domestic partners. Because every state sets its own marriage and domestic partnership laws, each couple should research the property rights available in their home state.
A cohabitation agreement allows a couple to establish the terms of their relationship or living arrangement in a contract before moving in together or at any time while living together. The agreement can include a variety of legal terms agreed upon by the parties — for example, the agreement may explain how the couple will divide their assets in the event of a breakup. A couple might choose a cohabitation agreement as an alternative to a marriage or registered domestic partnership. In addition, some same-sex couples sign cohabitation agreements to establish property rights when they cannot gain those rights through legal marriage or domestic partnership in their state.
Some cohabiting couples might have property rights through common-law marriage laws. To establish a common-law marriage, a couple must live together and openly tell others they are married, even though they lack a formal, solemnized marriage and marriage certificate filed with the state. In the event of a breakup, each party has the same legal rights as the rights established by a formal marriage. Accordingly, each party in a common-law marriage may have property rights to the couple's assets. Not every state, however, recognizes common-law marriages. Only a few states still allow couples to form such marriages.
Rights of Putative Spouses
Cohabiting couples also might establish property rights as putative spouses. Putative-spouse laws protect spouses who genuinely believed they were in valid marriages even though they failed, inadvertently, to meet the requirements for a legal marriage. Alternatively, putative-spouse laws protect an individual whose spouse knew the marriage was invalid but allowed the other person to believe the two parties were married. If established, a putative marriage protects each spouse by conferring the legal rights, including property rights, the spouse would have received through formal marriage. For example, a putative spouse might have a claim to assets that would have been marital property if the couple had married successfully.
References & Resources
- Lawyers.com: New Legal Concerns for Cohabitating Couples
- American Bar Association: Valid and Invalid Marriages
- State Bar of California Committee on Sexual Orientation and Gender Identity Discriminaton: Your Rights and Resources
- Lawyers.com: Cohabitation, Prenuptial and Postnuptial Agreements
- CNN: Study: Number of U.S. Married Couples at Record Low
- Lawyers.com: Common Law Marriage and Your Divorce