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Cohabitation (Living Together)

Cohabitation is the term used to describe the situation of persons who live together without being legally married. In 1970, approximately 530,000 persons of the opposite sex lived together without marriage in the United States. The number of unmarried opposite-sex cohabitants in the United States increased in 1980 to 1,600,000 persons, in 1990 to 2,900,000 persons, in 1998 to 4,200,000 persons, in 2000 to 5,500,000 persons, and in 2008 to 6,800,000 persons. In its recent survey entitled America’s Families and Living Arrangements, 2008 the U.S. Census Bureau reports that in 2008, “66.9 million opposite-sex couples lived together — 60.1 million were married, and 6.8 million were not.” In other words, of the opposite-sex couples living together in the United States in 2008, over ten percent were unmarried. The trend towards cohabition—and consequently away from marriage—among opposite-sex couples appears to be trending inexorably upward.

For the cohabitants themselves, there are advantages and disadvantages to cohabitation. The legal advantages of cohabitation include:

  1. A lack of formality in forming the relationship and an equal lack of formality in dissolving the relationship. If you never were married, then  you don’t need to divorce to dissolve the relationship. Please note, however, that the advantages of cohabitation do not extend to any child born to the cohabitants. The judicial establishment of paternity and subsequent enforcement of child-support obligations do not equate with a two-parent household in which a child is nurtured and raised by two parents, both of whom are a daily presence in the child’s life.
  2. The avoidence of the so-called marriage penalty under the Internal Revenue Code, that is, the higher income-tax rate imposed upon married couples than unmarried.
  3. The possiblilty that in some states the marriage ultimately and lawfully may be characterized as a common-law marriage.

The legal disadvantages of cohabitation include:

  1. The lack of marital property, that is the absence of any property right of either cohabitant in property acquired by the other cohabitant during the period of cohabitation.
  2. The lack of inheritable property, that is the absence of any right of inheritance by the surviving cohabitant in the estate of a deceased cohabitant.
  3. The illegitimacy of any child born to the female cohabitant, and the nececessity of establishing paternity in order to create a judicially enforceable child-support obligation for any child born to the female cohabitant.
  4. The lack of rights of inheritance in the estate of the father for any child of the female cohabitant that is fathered by the male cohabitant, absent either voluntary or judicial establishement of paternity.
  5. The possibility (though highly unlikely) of criminal prosecution of either or both cohabitants for cohabitation or fornication in the few states that still retain criminal laws against either cohabitation (generally defined as two individuals living together as husband and wife without being legally married) or fornication (generally defined as consensual sexual intercourse outside marriage).
  6. The lack of elegibilty for coverage or benefits under insurance contracts (although in many states cohabitants may now purchase life insurance on the life of the other cohabitant and purchase homeowner’s insurance on jointly owned residences) continues to be problematic.
  7. The lack of legal authority to make funeral or burial arrangements for a deceased cohabitant.
  8. The possiblilty that in some states the marriage ultimately and lawfully may be characterized as a common-law marriage.

For additional information on cohabitation, visit Cohabitation.USLegal.com

Inside Cohabitation (Living Together)