Non-Traditional Family Units – Cohabitating Couples

A. Cohabitating Couples

In the past forty years the number of unwed couples living together and raising families together has mushroomed. The law has changed in many respects, but there are still significantly less legal protections for cohabitating couples compared with married couples.

(1) Common Law Marriage. Common law marriage is not recognized in the majority of states (40 in all). Nine states (Alabama, Colorado, Iowa, Kansas, Rhode Island, South Carolina, Utah, Texas and Montana) recognize common law marriage, as does the District of Columbia. New Hampshire recognizes the concept for inheritance purposes only. The existence of a common law marriage is based upon the agreement of the spouses to be married. Individual states have a variety of legal tests to establish the existence of a marriage in divorce or probate proceedings. In most states which recognize common law marriage, cohabitation as husband and wife, as well as repute within the community must be proven in order to establish the marital relationship.

(2) Cohabitation Agreements. In some states, a written agreement between cohabitants is necessary for one party to enforce any rights in the income or property of the other upon separation (for example, Minnesota). In some states, if a court finds the relationship to include consideration which is severable from the meretricious nature of the relationship, the court may permit a real property partition action to proceed. The relationship may be viewed as analogous to a business partnership. (see for example Arizona, Carroll v. Lee, 712 P.2d 923 (1986). In a few states a meretricious relationship may give rise to an equitable claim by on party to assets held in the name of the other (Washington, In re Marriage of Pennington, 14 P.3d 764 (2000).

As a point of practice, the advice given to a party in a cohabitation situation is to either carefully maintain separate title to important assets, or obtain a clear and written agreement as to the rights of the parties in the event of separation.

(3) Parental Rights. Most states allow for the enforcement of parental rights even in the absence of marriage. This is a recognition of the fundamental right to the “care, custody and control of their children,” Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.Ed2d 49 (2000), as well as the right of children to a relationship with their parents. In some states, the statutes governing paternity actions specifically provide for the determination of custody, decision making responsibility, and parenting time. In addition many states provide for a parent’s standing to seek parenting time (visitation) and decision making responsibility (legal custody) regardless of the marital status (for example, Colorado §14-10-123, C.R.S.).

By: Richard M. Arnold, Esq. Arnold & Arnold, LLP