Cohabitation

A living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.

Couples cohabit, rather than marry, for a variety of reasons. They may want to test their compatibility before they commit to a legal union. They may want to maintain their single status for financial reasons. In some cases, such as those involving gay or lesbian couples, or individuals already married to another person, the law does not allow them to marry. In other cases, the partners may feel that marriage is unnecessary. Whatever the reasons, between 1970 and 1990, the number of couples living together outside of marriage quadrupled, from 523,000 to nearly 3 million. These couples face some of the same legal issues as married couples, as well as some issues that their married friends need never consider.

In most places, it is legal for unmarried people to live together, although some ZONING laws prohibit more than three unrelated people from inhabiting a house or apartment. A few states still prohibit fornication, or sexual relations between an unmarried man and woman, but such laws are no longer enforced. Even in the early twenty-first century, some states continue to prohibit SODOMY, which includes sexual relations between people of the same sex. Although these laws are rarely enforced, the U. S. Supreme Court upheld the constitutionality of these sodomy statutes as applied to same-sex couples in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). The Court reconsidered the same issue 17 years later, however, and decided that a Texas sodomy law that applied specifically to homosexual conduct violated the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT (LAWRENCE V. TEXAS, 539 U.S. ___, 123 S. Ct. 2472,156 L. Ed. 2d 508 [2003]). Advocates of GAY AND LESBIAN RIGHTS viewed the case as a victory for their cause.

The law traditionally has been biased in favor of marriage. Public policy supports marriage as necessary to the stability of the family, the basic societal unit. To preserve and encourage marriage, the law reserves many rights and privileges to married persons. Cohabitation carries none of those rights and privileges. It has been said that cohabitation has all of the headaches of marriage without any of the benefits. Cohabiting couples have little guidance as to their legal rights in such areas as property ownership, responsibility for debts, custody, access to HEALTH CARE and other benefits, and survivorship.

FAMILY LAW experts advise cohabiting couples to address these and other issues in a written cohabitation agreement, similar to a PREMARITAL AGREEMENT. The contract should outline how the couple will divide expenses and own property, whether they will maintain joint or separate bank accounts, and how their assets will be distributed if one partner dies or leaves the relationship. Property acquired during cohabitation, such as real estate, home furnishings, antiques, artwork, china, silver, tools, and sports equipment, may be contested if partners separate or if one of them dies. To avoid this, the agreement should clearly outline who is entitled to what.

When cohabiting couples separate, division of assets often becomes a contentious issue. In the past, courts refused to enforce agreements between unmarried couples to share income or assets, holding that such agreements were against public policy. In 1976, the California Supreme Court decided Marvin v. Marvin, 18 Cal. 3d 660, 134 Cal. Rptr. 815, 557 P.2d 106, holding that agreements between cohabiting couples to share income received during the time they live together can be legally binding and enforceable. The highly publicized suit between actor Lee Marvin and his live-in companion, Michelle Triola Marvin, was the first of a series of "palimony" suits that have become more numerous since the 1980s. The plaintiff in a palimony suit must prove that the agreement of financial support is not a meretricious agreement, that is, one made in exchange for a promise of sexual relations. Courts refuse to enforce meretricious contracts because of their similarity to contracts for prostitution.

The only way to guarantee that a valid agreement of support or division of property exists is to have it in writing. In the Marvin case, the plaintiff, who asked for $1.6 million, was awarded only $104,000. An appeals court revoked that amount and found that the plaintiff had failed to show that she and the defendant had an agreement (Marvin v. Marvin, 122 Cal. App. 3d 871, 176 Cal. Rptr. 555 [Cal. Ct. App. 1981]). Conversely, when tennis star Martina Navratilova separated from live-in lover Judy Nelson in 1993, Nelson filed a $16 million palimony suit, claiming that Navratilova reneged on a promise to share whatever the couple accumulated during their relationship. A signed and videotaped 1986 cohabitation agreement supported Nelson's claim, and Navratilova settled out of court for an undisclosed amount.

Cohabiting parents may face legal difficulties if they separate without a written parenting agreement. An unmarried father must acknowledge PATERNITY by filing an AFFIDAVIT with the state legitimating his child and establishing his parental relationship. Likewise, both parents must actively participate in the raising of the child in order to have a legitimate claim to custody or visitation. By legitimating their child and being involved in the child's upbringing, unmarried parents establish their right to seek custody or visitation if the family breaks up. Legitimation is also important for inheritance purposes. If an unmarried father dies without a will, his legitimated child can freely inherit his estate (see Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 [1977], which held that a signed statement establishing paternity of a child born out of wedlock is adequate protection of the child's inheritance rights). Of course, the best way to guarantee the distribution of assets to children is through a written will.

Cohabiting couples may face difficulties when one of them becomes ill and requires hospitalization or long-term care. The case of Sharon Kowalski and Karen Thompson illustrates this problem. Kowalski and Thompson lived together for four years before Kowalski sustained serious head injuries in a 1983 automobile accident. She was left paralyzed and seriously brain damaged, but able to communicate. Kowalski's parents refused to allow Thompson to see her or to participate in decisions about her treatment.

In 1984, Kowalski's father was awarded guardianship of Kowalski (In re Kowalski, 382 N.W.2d 861 [Minn. Ct. App. 1986] and the family continued to frustrate Thompson's efforts to see or assist Kowalski. In 1991, Kowalski's father voluntarily gave up his guardianship for medical reasons, and a Minnesota trial court awarded guardianship to Karen Tomberlin, a family friend whom the court considered a "neutral third party." The Minnesota Court of Appeals reversed the trial court, and after a seven-year battle, Thompson was finally granted guardianship of Kowalski (In re Kowalski, 478 N.W.2d 790 [Minn. Ct. App. 1991]). The court held that Kowalski had "sufficient capacity" to express her preference as to a guardian and that she had consistently said she wanted to be with Thompson. The court also noted the duration of the couple's relationship as well as the fact that they had exchanged rings and named each other as insurance beneficiaries before Kowalski's accident.

Cohabiting couples can avoid such conflicts by executing certain documents, including a durable POWER OF ATTORNEY and a medical power of attorney. A durable power of attorney grants an unmarried partner the necessary authority to make decisions in the event of physical or mental disability of the other partner. It goes further than a general power of attorney in that it specifically allows one partner to continue making decisions even if the other partner becomes incapacitated. A medical power of attorney allows one partner to make decisions regarding medical treatment for the other. If the partners have specific instructions about funeral arrangements, these too should be put in writing. In addition, a written will or trust allows partners to specify the distribution of their property, including life insurance benefits, IRAs, and bank accounts. Partners may also name their preferred trustee or executor.

Many cohabiting heterosexual couples believe that the law will recognize their relation-ship as a COMMON-LAW MARRIAGE with the legal protections and financial benefits of marriage. However, only Alabama, Colorado, the District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah recognize common-law marriage. In those states, a man and woman who live together and represent themselves as married may be given common-law recognition. Once a common-law marriage has been established, it must be dissolved through DIVORCE. Cohabiting couples who live in a state that recognizes common-law marriage and do not wish to be married should execute a statement that they are not married in order to avoid a later finding that a common-law marriage existed.

In the 1990s, a few courts began to recognize the familial ties of unmarried couples. In Braschi v. Stahl Associates, 74 N.Y.2d 201, 543 N.E.2d 49, 544 N.Y.S.2d 784 (1989), New York State's highest court found that a homosexual man and his deceased life partner had constituted a family for purposes of New York City's rent control ordinance. The court found that in this case, the term family should be construed broadly and should encompass contemporary realities, including unmarried adult partners in a long-term, committed relationship that shows mutual sharing of the mundane tasks of everyday life. Similarly, in Dunphy v. Gregor, 261 N.J. Super. 110, 617 A.2d 1248 (N.J. 1992), the court found that a woman who had witnessed the events leading to her fiancé's death had standing to sue for the emotional damage she suffered as a result. Previously, suits such as this (called bystander liability suits) were limited to those who were married or had blood ties to the victim. However, the court in Dunphy found that the plaintiff met the requirement of "intimate familial relationship," noting that the plaintiff and her fiancé had lived together for several years, that there was a high degree of mutual dependence in their relationship, and that they contributed to and shared a common life.

Since the 1980s, a growing number of states and municipalities have passed laws allowing unmarried couples, both heterosexual and homosexual, to register as domestic partners. Some cities have established a domestic partner registry, while others extend certain benefits to domestic partners even if the city does not provide a registry. The state of California leads the nation in the number of cities and counties that provide benefits to domestic partners, offer domestic partner registries, or both. Cities providing domestic partner benefits include New York City, Los Angeles, Chicago, Boston, and Philadelphia. The ordinances and statues in these cities allow couples to register as domestic partners, and to dissolve their partnerships if they separate.

Two 1995 court decisions declared particular domestic partner ordinances invalid. In Lilly v. City of Minneapolis, 527 N.W. 2d 107, the Minnesota Court of Appeals struck down a Minneapolis city council resolution authorizing reimbursement to city employees for health care insurance costs for same-sex domestic partners and for blood relatives not classified as dependents under state law. The court held that the resolution was beyond the scope of the council's authority and lacked legal force. Likewise, in City of Atlanta v. McKinney, 265 Ga. 161, 454 S.E.2d 517, the Supreme Court of Georgia held that the city of Atlanta had exceeded its authority when it had extended employee benefits to persons who did not qualify as dependents under state law.

Some same-sex cohabitants face other types of legal challenges. In Garcia v. Garcia, 60 P.3d 1174 (Utah Ct. App. 2002), the Utah Court of Appeals held that an ex-wife's involvement in a same-sex relationship constituted cohabitation for the purpose of determining whether the exhusband's ALIMONY payments should be terminated. Under Utah law, a court's order requiring alimony payments from one spouse to the other terminates upon proof that the spouse receiving alimony is cohabiting with another person. The ex-wife allegedly maintained a long-term relationship with another woman, during which time she shared a common residency and had sexual contact. The trial court held that the statute's definition of cohabitation applied only to relationships between members of the opposite sex. The appeals court disagreed, holding that the term "sexual contact" in the statute also included such contact between members of the same sex, and reversed the trial court's decision.