Cohabitation: Background and Legal Issues

Understanding the legal implications of cohabitation is crucial as it affects aspects like property division and financial support, which differ from those in a marriage. These factors apply to opposite-sex and same-sex couples alike.

This article provides a brief background on cohabitation in the U.S. You’ll also learn what research says about living together before marriage, and some legal pros and cons of cohabitation.

Cohabitation: A Brief Background

Traditionally, the law hasn’t favored individuals living together outside marriage. Some religions disapprove of couples living together outside marriage. Law and religion were historically connected, and traditional marriage was the basis of most laws governing joint property and child custody. But over the past 40 years, American laws in the area of cohabitation have changed drastically.

Cohabitation has increased during this time. Generally, the number of cohabitating couples has increased since the 1980s. Premarital cohabitation is becoming more common among young adults as a demographic trend. Other research has reflected demographic differences in cohabitation rates, with a higher prevalence among younger age groups.

Further, married couples may first try the cohabitation experience before marriage.

According to the U.S. Census Bureau, there were 9 million households in 2020 occupied by cohabitating couples.

Cohabitation Research

Researchers such as Larry Bumpass and Pamela Smock have studied cohabitation. They studied its impact on marriage rates and marital dissolution. Sociologists, such as Wendy D. Manning, Kathleen Kiernan, and Arland Thornton, have also examined its effects on people and society.

A study from The Penn Wharton Budget Model revealed that over the last two decades, cohabitation rates in the U.S. have increased significantly, while marriage rates have declined. This trend is expected to continue, influenced by changing demographics and societal attitudes toward family formation. It also illustrates that cohabiting individuals generally show lower workforce engagement and earnings compared to married couples.

The Penn Wharton Budget Model study also shows that cohabitation rates have increased rapidly across all levels of education—from less than high school to college graduates. But, those with less formal education tend to have higher cohabitation rates. This could suggest that couples choose to cohabitate while they are still pursuing college degrees and developing their careers before eventually getting married.

The National Survey of Family Growth (NSFG) shows that more than two-thirds of women ages 15-44 cohabit before their first marriage. Similar trends have been observed in Canada, Australia, Norway, and Sweden.

One study published in the Journal of Marriage and Family surveyed several respondents and concluded that cohabiting relationships are less stable. It also found that they are more likely to dissolve than marriages.

Cohabiting has become a normative part of the life course for many young adults. Yet, cohabiting couples remain a small number compared with married couples. For instance, in New York and Washington, D.C., cohabitors only make up a small proportion of the population.

Cohabiting partners can enjoy the emotional and financial support of living together. They may also face legal and financial challenges. Knowing the pros and cons of this type of living arrangement is essential before moving in with your partner.

Legal Pros and Cons of Cohabitation

In some respects, unmarried cohabitation today can be beneficial from a legal standpoint. Unmarried partners may define the terms of their relationship without being bound by marriage laws, which can sometimes restrict the marriage relationship. After a breakup, cohabitants don’t need to follow strict procedures to exit.

But, unmarried cohabitants don’t enjoy the same rights as married people, especially concerning property acquired during a relationship. Marital property laws don’t apply to unmarried couples the way they do to married couples even those in long-term relationships.

There are also certain tax benefits married couples enjoy that cohabitating couples are not entitled to.

Children of Cohabitating Parents

In the past, children of unmarried couples born out of wedlock were "illegitimate." They weren’t afforded the same legal rights as children of married couples. These laws have changed since the late 1960s and early 1970s.

The marital status of parents is no longer an issue. The Supreme Court found in 1968 that treating illegitimate children differently was unconstitutional. It violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

Cohabitating Family Relationships

Cohabiting relationships can involve childbearing and family formation, like for married couples. Cohabiting couples do not have the same legal protections and benefits as marriage. They might not have the same rights to property or health insurance. This may affect your family life or family structure in different ways.

Cohabitation Contracts

Some nonmarital couples who live together choose to enter into "living together contracts." These contracts provide rights to both parties, like rights enjoyed by married couples. Many family law experts recommend that unmarried cohabitants enter into such arrangements.

Cohabitation agreements aren’t just for romantic relationships. Roommates can benefit from using these contracts as well.

These contracts can protect both partners. They can be especially helpful when there are significant assets or debts. Yet, cohabitation agreements may be invalid in some states, especially if sex is a condition of the contract.

Questions About Cohabitation? Ask an Attorney

Cohabitation in the United States has become more common among young people. This is sometimes the first union formation before marriage.

Talk to a family law attorney today if you have questions about your living situation, either with a romantic partner or a roommate. A skilled attorney can look at the facts of your specific case. They can give you helpful legal advice on the best way to safeguard your future.