COHABITATION

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 relationship
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 longterm,
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.
FURTHER READINGS
American Bar Association. 1994. Family Legal Guide. New
York: Random House.
Dailey, Patricia A. 1994. “Domestic Partnerships in the
Nineties.” Delaware Lawyer (summer).
Duff, Johnette, and George G. Truitt. 1992. The Spousal
Equivalent Handbook: A Legal and Financial Guide to
Living Together. New York: Penguin, NAL/Dutton.
Ihara, Toni, Robin Leonard, and Ralph Warner. 1994. The
Living Together Kit. 7th ed. Berkeley, Calif.: Nolo Press.
Richardson, David G. 1993. “Family Rights for Unmarried
Couples.” Kansas Journal of Law and Public Policy
(spring).
Samuels, M. Dee. 1995. “You Don’t Have to Be Married to Be
Legal.” Compleat Lawyer (winter).
Wallman, Lester. 1994. Cupid, Couples, and Contracts: A
Guide to Living Together, Prenuptial Agreements, and
Divorce. New York: MasterMedia.
CROSS-REFERENCES
Parent and Child.