Lawyers For COHABITATION LAW
The law has not traditionally looked favorably upon individuals living together outside marriage. However, the law in this area has changed considerably in the past 40 years, and cohabitation has increased dramatically. In 1970, about 530,000 couples reportedly lived together outside marriage. This number increased to 1.6 million in 1980, 2.9 million in 1990, 4.2 million in 1998, and 5.5 million in 2000.
In some respects, unmarried cohabitation 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 need not 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 (notwithstanding efforts to eliminate this penalty).
On the other hand, unmarried cohabitants do not enjoy the same rights as married individuals, particularly with respect to property acquired during a relationship. Marital property laws do not apply to unmarried couples, even in long-term relationships. Moreover, laws regarding distribution of property of one spouse to another at death do not apply to unmarried couples. Children of unmarried couples have traditionally not been afforded the same rights as children of married couples, though most of these laws have now been revised to avoid unfairness towards offspring.
A fairly recent trend among both heterosexual and homosexual couples who live together is to enter into contracts that provide rights to both parties that are similar to rights enjoyed by married couples. In fact, many family law experts now 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, such arrangements may be invalid in some states, particularly where the contract is based on the sexual relationship of the parties.
Marriage vs. Cohabitation
Marriage may not be right for everyone. For a variety of reasons, some couples choose to live together without the benefit of a legal union. There are legal differences between marriage and cohabitation relationships, some of which are summarized below.
Marriage requirements — which vary from state to state — include a license, a waiting period, blood tests, minimum ages, a ceremony officiated by a clergyperson or an officer of the court, and witnesses.
Cohabitation can be entered into any time, by anybody of any age and any gender, with no formal requirements.
Marriage must be ended by a formal, legal divorce or annulment process that can be costly, time consuming, complicated, and emotionally draining.
Usually can be ended simply and informally upon the agreement of the parties. Often, however, the emotional costs are the same as or similar to those experienced at the end of a marriage.
Divorcing spouses have the obligation to divide their property by legally prescribed methods.
At the end of a cohabitation relationship, the parties can usually divide property however they wish. However, the absence of legal guidelines may create even more conflict as to who gets what.
A higher-wage-earning spouse may have the obligation to provide financial support for the other spouse upon separation or divorce.
Couples who live together and then split up usually do not incur the obligation to support each other after the break-up, unless they have entered into a contract providing otherwise. While this may seem a boon to the supporting partner, a partner who has become accustomed to being supported may face unexpected financial hardship after the split.
If one spouse becomes ill or incompetent, the other spouse generally has the right to make decisions on the ill spouse’s behalf, on issues including health care and finances.
No matter how close the bond or how long the relationship has existed, a cohabitant may need to defer to immediate family members when it comes to making decisions for an ill or incompetent unmarried partner, unless a general power of attorney or health care power of attorney give that authority to the cohabitating partner.
When one spouse dies, the other spouse has the legal right to inherit a portion of the deceased spouse’s estate.
When one cohabitant dies, his or her property will pass to whomever is named in the will or, if there is no will, to family members according to state laws. The surviving partner has no claim to the estate unless he or she was named in the deceased partner’s will.
Children born during the marriage are presumed to be the offspring of the husband and wife.
The father of a child born to unmarried cohabitants is not entitled to a legal presumption of paternity, and may have to establish his paternity through blood tests and a legal action.
Children born to married couples must be financially supported during the marriage.
The male in a cohabitating partnership does not incur an immediate legal obligation to support children born during the cohabitation, but may do so voluntarily (and MUST do so if paternity is established).
After separation or divorce, the non-custodial parent generally is legally obligated to help financially support the children of the marriage.
Cohabitation Do’s and Don’ts
- DO consider entering into a cohabitation agreement before moving in together. It can set the ground rules for the financial and other arrangements in the relationship, and may prevent a lot of headaches if the relationship doesn’t last.
- DO hold title to any major purchases in the name of the person or persons who is/are actually paying for it. If you buy a car with your own down payment and make all the monthly payments yourself, the car should be in your name only. Joint purchases, however, should be in the names of both parties.
- DO keep finances separate if you want to avoid heated disputes in the event the relationship terminates.
- DO keep accurate records of your financial contributions to any property held by your partner.
- DO write “gift” or “loan” on checks written to your partner if you want to negate any possible suggestion that you have been supporting him or her, which is an issue that can arise in a post-break-up “palimony” lawsuit.
- DO remember that a never-married parent has the same child support obligations as a once-married parent.
- DON’T commingle your money by opening joint accounts, incurring joint debts, or making joint purchases if you want to avoid legal complications and the possibility of a “palimony” suit for support of your partner after a split.
- DON’T allow your partner to hold title to major purchases in his or her name alone if you are both paying for that property, even if he or she orally agrees that the house or car belongs to both of you. The deed or title is more convincing evidence than one partner’s allegation of a spoken promise.
- DON’T co-sign or guarantee debts that are incurred by your partner unless you intend to be equally responsible for paying them back, even if you should split up.
- DON’T become so financially dependent on your partner that you limit your ability to support yourself in the future. Whereas divorced spouses may have the legal obligation to support each other, especially if one gave up a career to take care of the home and children, the same is not true of former cohabitants. Either keep up your skills and contacts in the job market, or consider a written agreement setting forth your partner’s legal obligation to help support you if the relationship ends.
- DON’T hold yourselves out to the public as husband and wife, allow yourselves to be known as or referred to as “Mr. and Mrs. So-and-so,” or use the same last name, even casually, if you want to avoid the legal complications of a “palimony” suit or the potential for common-law-marriage status should the relationship end.
After a cohabitating relationship ends, the non-custodial parent has the same legal obligation to support his or her children as legally separated or divorced parents, if parentage has been established.
Parenting Issues for Unmarried Couples FAQ
Unmarried partners who want to raise children together face a host of unique concerns.
What steps must unmarried parents take to ensure that they are both considered the legal parents of their child?
To make sure that a child’s biological parents are also the legal parents, both mother and father should be listed on the child’s birth certificate. If you want to add a parent’s name to a birth certificate, contact your state’s Bureau of Vital Statistics. You can find this contact information by visiting the website of the National Center for Health Statistics.
In order to be listed on a child’s birth certificate, most states require unmarried fathers to sign an affidavit or acknowledgment of paternity. In any case, it’s a good idea for both parents to write, sign and notarize a statement acknowledging the father’s paternity. You can take this one step further by contacting your state’s Vital Statistics office and asking whether they keep paternity statements on file. If they do, make sure yours is filed.
Does a child born to unmarried parents qualify for government benefits?
Any biological or legal child is eligible for government benefits, including Social Security survivorship benefits, government pension benefits and the like. The key is to ensure birth certificate and paternity issues are resolved as soon as, or shortly after, the child’s birth. (See the previous question.) Once that’s done, you can be assured that if tragedy strikes you or your partner, your child will be covered. If you neglect to establish yourself as a legal parent — for example, by failing to put your name on the birth certificate — and your child seeks government benefits after your death, the agency may deny his or her request because there isn’t any proof that you were the parent. At the very least, your child will have to deal with the hassles of proving parentage.
Parenting Issues for Unmarried Couples FAQ
When an unmarried couple has a child, whose last name does the child take?
In the vast majority of states, when it comes to baby names, anything goes. This includes first, middle and last names. You don’t have to give the baby the last name of either parent — for example, Mary Jones and Jack Brown can name their child Sunrise Smith. You may opt to hyphenate both of your last names, give the child one of your last names as a middle name — or decide later and amend the birth certificate to reflect your new choice. (As mentioned above, you can amend a birth certificate by contacting your state’s Department of Vital Statistics, which you can locate through the website of the National Center for Health Statistics.)
Can an unmarried couple adopt a child together?
In many states, they can. Unfortunately, even in states that permit joint adoptions, some social service and government agencies discriminate against unmarried couples. An unmarried couple can expect to do a bit more work to prove that their home is a stable and healthy environment for raising children. It’s wise for any unmarried couple to consult a good family lawyer to get the lay of the legal land, as well as some practical guidance, before moving ahead with adoption plans.
If an unmarried couple jointly adopts a child, they will both be legal parents. This means that each partner has equal legal responsibilities to raise and support the child. And if the partners ever separate, each has an equal legal right to petition a court for custody or visitation of the child, as well as an obligation to provide child support.
If a parent partners with someone who isn’t the child’s other parent, can the new partner adopt the child?
This is commonly called a “second-parent adoption.” Where the adopting couple is married, these adoptions are approved pretty readily because the couple’s relationship is legally valid, and the child is already in the home and will stay there even if the adoption is denied. A number of states, however, still frown upon second-parent adoptions by unmarried couples, so if a partner wishes to adopt without marrying, he or she should consult with a local family law attorney to get an up-to-the-minute evaluation of the law.
Keep in mind that this type of adoption can’t take place unless one of the following is true:
* both of the child’s legal parents consent
* the noncustodial parent is deceased
* a court has found the noncustodial parent to be unfit to raise the child, or
* the noncustodial parent has abandoned the child.
If the noncustodial parent is the father, a social service agency will determine whether he has abandoned the child or whether his consent is needed before a second-parent adoption can take place. A father who signs a paternity statement, provides support (if he can) and maintains a relationship with his child is not in danger of the child being adopted by someone else without his consent.
If the noncustodial parent is the mother, the social service agency will have to obtain her consent or recommend that her parental rights be terminated. Unmarried mothers without custody must pay support if they can and visit the child — or risk losing the child to a second-parent adoption.
If the adoption is successful, the adopting parent has the same legal rights and responsibilities of a biological parent, including the duty to raise and support the child, and the rights to custody and visitation if the couple ever separates.
Parenting Issues for Unmarried Couples FAQ
Can both unmarried parents claim their child on their separate tax returns?
Taxes affect unmarried people with children much in the same way they do divorced partners — only one person can claim the child as a dependent. This doesn’t mean that only one parent is entitled to claim the child, just that only one person can legally take the exemption. How to decide who gets the tax break? That’s easy. The parent whose income is in the higher tax bracket will get a bigger tax savings. Parents can agree in advance, and in writing if they prefer, on how to split the return.
Can a person who isn’t a parent, but who plays a live-in parental role, take care of tasks like signing school permission slips or making medical decisions for a child?
That depends on several factors. First, is the other legal parent in the picture? If he is and he shares joint legal custody with your partner, chances are he has priority for making medical decisions. Hower, the non-parent may be listed as an emergency contact on school and other important records, in case a legal parent isn’t available to make decisions for the child.
Regarding school permission slips, non-parents face restrictions here also. Schools are legally responsible for the children in their care. As such, they are only permitted to accept signatures from legal guardians. A legal guardian could be a foster parent or anyone who has legal custody of a child. An unmarried partner of a legal parent probably does not qualify. However, non-parents may be allowed to pick up a child from school (or daycare) if a legal parent informs the school that this will be happening either regularly or on a particular occasion.
To maximize what a non-parent caretaker can do, the legal parent should contact school and other authorities to find out what rights are available and what procedures are required to establish them.
When unmarried parents separate, how does the break up affect parenting rights and responsibilities?
If both partners are legal parents of the child — either because they are biological parents, because they have jointly adopted a child or because a non-biological parent has obtained a legally valid second-parent adoption — both parents usually have an equal right to custody of the child. This means that neither parent has the right to deprive the other of physical custody or visitation unless, or until, a judge makes such an order. If a court does grant one parent physical custody, the other parent is usually entitled to visitation and is next in line to exercise physical custody rights if the custodial parent becomes unable to care for the child.
Of course, the right to be considered a full legal parent of a child can be lost if a parent fails to exercise his or her parental responsibilities. For example, all legal parents have a duty to support their children, whether or not they have physical custody of them. The key is that if you are not the parent with custody, you must stay involved with your child — visiting and providing support — to the best of your ability.
If a partner is not a legal parent of the child, the partner may not have any legal rights to parent or even visit the child after a break-up. Ideally, if a partner wants to continue to be part of the child’s life, both members of the couple will make and honor a workable (preferably written) agreement about how each will continue to parent, including the issues of visitation and support. If separating partners can’t reach an agreement and one of them wants to petition a court for visitation, the outcome will depend on state law. Not long ago, almost all states would have denied a non-legal parent any right to see the child of a former partner, no matter how close the parent had been to the child while they were living in the same house. But this rule is changing as some state courts recognize that the best interests of the child may make visitation with a non-legal parent desirable. Because this area of the law is in constant flux, you’ll want to research your state’s law or visit a good family law attorney for guidance
Making Medical and Financial Decisions for Your Partner
To allow your partner to take care of things for you if you can’t speak for yourself, you must prepare the right legal documents.
If you ever become unable to make your own health care decisions or manage your own finances — because of injury, serious illness, or advanced age — you probably want your partner to step in and take care of you. Unfortunately, members of unmarried couples, unlike their married counterparts, often aren’t permitted to handle medical or financial decisions for each other without signed authorization.
There are a few simple legal documents you should prepare if you want to ensure that critical decisions stay in the hands of your partner: health care directives and a durable power of attorney for finances. Without these documents, your partner may face tremendous emotional and practical problems if he or she tries to make health care decisions for you in the event of a medical emergency or handle a simple financial transaction on your behalf when you’re not able to. At worst, your health care and finances may be placed in the hands of a biological relative who won’t consider your partner’s input. And this relative may well make decisions that go against what you want.
Fortunately, the documents you need are straightforward and usually easy to complete.
Health Care (Medical) Directives
Every state has laws authorizing individuals to create simple documents setting out their wishes about the type of medical treatment they want (or don’t want) if they become unable to communicate their own decisions. These documents may also name someone to direct their care.
Health care directives are particularly important for unmarried partners, although married people should have them, too, to avoid conflict with other family members. If you don’t take the time to prepare them and you become incapacitated, doctors will turn to a family member designated by state law to make medical decisions for you. Most states list spouses, adult children, and parents as top-priority decision makers, making no mention of unmarried partners.
Making Medical and Financial Decisions for Your Partner
A few states do include partners in their list of potential surrogate decision makers — including Arizona, Delaware, Maine, and New Mexico. However, only New Mexico gives priority to a long-term partner. Other states make room for unmarried partners (sometimes classifying them as “close friends”) only if listed family members are unavailable. And, in the few states where domestic partnership is available for same-sex couples, registered partners have priority over other family members. However, no matter what state you live in, you can save your partner a great deal of time and trouble by planning ahead.
There are two documents that permit you to set out your health care wishes, both grouped under the broad label “health care directives.” First, you need a health care “declaration,” a written statement you make directly to medical personnel that spells out your wishes for medical care if you become incapacitated. Your declaration functions as a contract with your treating doctor, who must either honor your wishes for health care or transfer you to another doctor or facility that will honor them.
The second document is usually called a “durable power of attorney for health care.” In this document you appoint the person you choose — most likely your partner — to see that your doctors and other health care providers give you the kind of medical care you want to receive. You can also use your durable power of attorney for health care to give your partner (who may be called your “attorney-in-fact,” “agent,” or “proxy,” depending on where you live) other rights to participate in your medical care, including:
* directing your health care under any circumstances that you don’t specifically address in your declaration
* hiring and firing medical personnel
* visiting you in the hospital or other facility even when other visiting is restricted
* having access to medical records and other personal information, and
* getting court authorization to enforce your health care wishes if a hospital or doctor refuses to honor them for any reason.
Making Medical and Financial Decisions for Your Partner
In some states, your declaration and durable power of attorney for health care will be combined into a single document, often called an “advance health care directive.”
You can make valid health care directives if you are at least 18 years old and of sound mind. Being of sound mind essentially means that you are able to understand what the document means, what it contains, and how it works. Physically disabled people may make valid health care documents; they can direct another to sign for them if they are unable to do so.
You may change or revoke your health care directives at any time as long as you are of sound mind.
Financial Powers of Attorney
A durable power of attorney for finances allows you to name someone you trust (called your “attorney-in-fact” or “agent”) to handle your finances if you become unable to take care of yourself. Every state recognizes this type of document.
As with documents directing medical care, you should seriously consider making a durable power of attorney for finances if you want your partner to manage your money if you become unable to. If you don’t prepare the document and you later become incapacitated, your partner or other family members will have to ask a court for authority over your financial affairs. These proceedings, called “conservatorship proceedings,” can be time-consuming and expensive — and they can be disastrous for unmarried couples if the court names another family member to take over, especially if your finances have been intertwined with those of your partner for a long time.
You can make your financial power of attorney effective immediately, or you can specify that it should go into effect only if you become incapacitated; the latter is called a “springing” power of attorney. While some people are more comfortable making a springing document, an immediately effective document holds a potential advantage for unmarried couples in a long-term, trusting relationship. If you make your document effective immediately, your partner can handle financial transactions for you at any time, even when you are not incapacitated. This can be useful if you are out of town, under the weather, or temporarily unavailable for any other reason.
Making Medical and Financial Decisions for Your Partner
When you make a durable power of attorney for finances, you can give your partner (or other attorney-in-fact) as much or as little control over your finances as you wish. The powers you grant may include:
- using your assets to pay your bills and everyday expenses
- buying, selling, maintaining, paying taxes on, and mortgaging real estate and other property
- collecting benefits from Social Security, Medicare, or other government programs or civil or military service
- investing your money in stocks, bonds, and mutual funds
- handling transactions with banks and other financial institutions
- buying and selling insurance policies and annuities for you
- filing and paying your taxes
- operating your small business
- claiming property you inherit or are otherwise entitled to
- hiring someone to represent you in court, and
- managing your retirement accounts.
Like health care directives, you can make a durable power of attorney for finances if you are at least 18 years old and of sound mind. And you can change or cancel your document at any time, as long as you are of sound mind.