Cohabitation: Background and Legal Issues

Cohabitation is when two adult intimate partners live together, but aren't married. Prior to the U.S. Supreme Court decision in Obergefell, cohabitation was one of the only options for same-sex couples in states where marriage, civil unions, or domestic partnerships weren't available to them. While society has become more accepting of cohabitation, it's important to know that there are certain legal issues that arise when couples live together without getting married.

Cohabitation: Background

The law hasn't traditionally looked favorably upon individuals living together outside marriage. Religion has, and in many cases, continues to disapprove of living together outside of marriage, hence the common term for it "living in sin." Law and religion were historically closely connected. However, the law in the area of cohabitation has changed considerably in the past 40 years.

Cohabitation has also increased dramatically during this time. Generally speaking, the number of cohabitating couples has increased since the 1980s. In fact, according to the U.S. Census Bureau, there was an unusual increase in the number of cohabitating couples between 2009 and 2010.

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 that can restrict the marriage relationship. When a relationship ends, unmarried cohabitants don't need to follow strict procedures to dissolve the living arrangement. Moreover, unmarried couples can avoid the so-called "marriage tax" in the Internal Revenue Code that provides a greater tax rate for unmarried couples than it does for two unmarried individuals. Although, some are trying to eliminate this penalty.

On the other hand, unmarried cohabitants don't enjoy the same rights as married individuals, particularly with respect to property acquired during a relationship. Marital property laws don't apply to unmarried couples, even in long-term relationships. Moreover, laws regarding distribution of property of one spouse to another at death don't apply to unmarried couples.

Children of Cohabitating Parents

Traditionally, children of unmarried couples were considered "illegitimate" and weren't afforded the same legal rights as children of married couples. However, these laws have changed because in the late 1960s and early 1970s the Supreme Court found that treating illegitimate children differently violated the Equal Protection Clause found in the 14th Amendment of the U.S. Constitution.

Some research has shown that children of cohabitating parents are at higher risk of poorer outcomes than children of married parents because they have fewer resources and the living situations can be unstable. However, as cohabitation becomes more common, it remains to be seen how children of unmarried couples will be affected.

Cohabitation Contracts

Some opposite-sex and same-sex couples who live together choose to enter into "living together contracts" that provide rights to both parties that are similar to rights enjoyed by married couples. In fact, many family law experts recommend that unmarried cohabitants enter into such arrangements. Further changes in the laws may also afford greater rights to unmarried partners who live together. However, cohabitation agreements may be invalid in some states, particularly where the contract is based on the sexual relationship of the parties.

Questions About Legal Issues Surrounding Cohabitation? Ask an Attorney

While it's a person decision to get married to your partner or live together without getting married, it's a good idea to be well-informed of the benefits and downsides of each situation. If you have questions about marriage and living together as an unmarried couple, it's a good idea to talk to a family law attorney and received legal advice based on your unique situation.