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Cohabitation Does Not Give You Spousal Rights

Cohabitation Does Not Give You Spousal Rights

Only sixty years ago, Frank Sinatra had a Top 40 hit by crooning that “love and marriage go together like a horse and carriage,” but that isn’t necessarily the case in the 21st century. Every day now, more couples are choosing to live together without first taking marriage vows, and more of those relationships are now lasting longer too, according to university researchers who have studied the rising numbers of people living in cohabitation arrangements in the United States. By 2010, almost half of the women in what researchers are calling “first unions” – 48 percent of them – were moving in with a partner without first getting married, an increase from 43 percent in 2002 and from 34 percent in 1995. About 40 percent of those who move into cohabitation arrangements marry within three years, and another 32 percent continue cohabiting, suggesting an important new societal role for a living arrangement that once carried a social stigma. “It’s becoming more acceptable to be in a long-term, committed relationship without a legal document,” said Pamela J. Smock, director and research professor at the Population Studies Center at the University of Michigan-Ann Arbor, in an interview with NBC News.

Cohabitation is generally defined as two (or more) people in an intimate relationship who live together and share a common domestic life but are joined neither by marriage nor by a civil union. Cohabitation by unmarried persons totaled about 8.1 million couples living together in the United States as of 2011. While there may no longer be a social stigma attached to living together while unmarried, the absence of a stigma in no way means that cohabitation arrangements are necessarily problem-free. The most serious problem from a legal perspective is that when two people decide to live together in a cohabitation arrangement, they may be setting aside their rights and placing their property and assets in legal jeopardy.


The legal rights of cohabiting partners are a growing concern for attorneys, courts, and lawmakers not only in California but also across the nation and even in other parts of the globe. In the United Kingdom, for example, according to figures released in 2015 by the U.K.’s Office for National Statistics, seventeen percent of all household living arrangements now involve cohabitation, and one group of U.K. family law attorneys is demanding more legal protection for cohabiting individuals. In the state of California, you really must have a formal, legal cohabitation agreement in writing to ensure that you are protected if a cohabitation arrangement breaks up. In southern California, an experienced Orange County family law attorney can help couples draft and establish a formal cohabitation agreement that’s uniquely right for them.

According to the data compiled by the Population Studies Center at Ann Arbor, between 1995 and 2010, first-time cohabitation increased in the United States by 43 percent for white women, 57 percent for Hispanic women, and 39 percent for black women. By 2010, about 70 percent of women with less than a high-school education were moving in without marriage with a man as a first union, up from 46 percent in 1995. For women with a bachelor’s degree or higher, 47 percent now live with their partners without marriage first, up from about 34 percent in 1995. For all women in the study, however, cohabitation relationships are lasting longer. Those relationships averaged 22 months in 2010, up from 13 months in 1995. And almost a quarter of the children who are born in the United States to women ages 15 to 44 are now born while those mothers are cohabiting, up from only 14 percent as recently as 2002.

Rather than the “breakdown of the family,” we may instead be witnessing the rise of a different kind of family, a family comprised of people who are happy to spend their lives together without feeling either legal or religious pressures to formalize that arrangement. If a new kind of family arrangement is emerging, as some observers believe, lawmakers will need to begin addressing that emerging reality by protecting the property rights of those living in cohabitation arrangements. The current complete lack of basic legal protection could at any point negatively impact anyone who is economically vulnerable or dependent and living in a cohabitation arrangement.


Many people in California and elsewhere still hold the misconception that when two people live together for some particular length of time, it confers marital rights. That is a complete myth. No common law marriage is recognized in the state of California. Cohabiting individuals are treated strictly as individuals under California law. If you split up after five days or fifty years, it’s the same legal result. If there are children involved, the state will assure some provision for those children until they reach legal adulthood, but that’s it. Cohabitation arrangements also tend to open up a real gender gap, too. Women who sacrifice their ability to earn in order to have and raise children can be genuinely victimized when cohabitation arrangements dissolve after two people have spent years together.

Not understanding your legal rights – or actually, your lack of legal rights in a cohabitation arrangement – can cost you dearly. If you linger for years in a cohabitation arrangement, making financial sacrifices and just sort of expecting that everything will be okay in the long run, you could be in for a quite nasty surprise in the event of a break-up. As the law stands currently, you would actually have a better legal chance of obtaining financial provision for yourself if your partner passed away, because you might qualify as a dependent under California inheritance law. In a break-up, unless you have a formal cohabitation agreement that protects you, you could conceivably end up with nothing in return for your years of sacrifice.

A cohabitation contract or agreement is similar in some respects to a prenuptial agreement. A cohabitation contract needs to address the important issues in a relationship with specificity and precision. It should spell out exactly what will happen to the home, other properties, vehicles, bank accounts, and other assets. It should also describe any support or “palimony” that may be paid by one partner to the other subsequent to a break-up. If you and your partner can mutually agree on these matters and create a formal cohabitation agreement with the help of an experienced family law attorney, you can save yourselves expense, time, and possibly a great deal of grief and acrimony if your cohabitation arrangement comes to an abrupt and unexpected end. On the other hand, putting your head in the sand and assuming that tomorrow will always be just like today can leave you in genuine economic distress and without any legal recourse whatsoever after a break-up. For older adults – especially with no savings and few employment skills – that situation can be grim. Without an enforceable cohabitation agreement in writing, your chances of obtaining “palimony” after a break-up are slim at best.


In California, “palimony” is not a legal term – it’s an expression that was coined by divorce lawyer Marvin Mitchelson back in 1976 during the famous-at-the-time Marvin v. Marvin trial. The California Supreme Court established in that case that non-marital relationship contracts such as cohabitation agreements may be legally considered and enforced by California courts. However, another court found that no contract had ever existed between actor Lee Marvin and his cohabiting “pal,” Michelle Triola. Ms. Triola was awarded nothing, but the legal concept of palimony in California was established and affirmed in that case by the state’s highest court. Except in New Jersey, palimony cases are heard in civil courts as contract disputes rather than in family courts. In some palimony cases, however, a palimony agreement that is acceptable to both parties can be worked out through mediation, and a courtroom trial can be avoided.

Do the right thing if you are living in a cohabitation arrangement, and take the steps that you need to take now to look after yourself properly in the years to come. Until lawmakers begin to address the general issue of cohabiting families, you will have to initiate that action by yourself or along with your partner. A mature partner who respects you will see clearly and immediately that a cohabitation agreement is the fair and right thing to do. Some people will probably consider a cohabitation agreement “unromantic.” Maybe it is, but it’s also essential and smart if you want to protect your future.

To avoid a lengthy and agonizing courtroom battle over “palimony,” it’s wise for couples who are living together – or intending to – to draft a written agreement that specifies precisely the terms of any break-up of the cohabitation arrangement. An experienced family law attorney can help you and your partner reach an agreement – and put it in writing – that protects both of you and addresses all of your concerns in the event of a break-up. If you – or you and your partner – have any questions or concerns regarding palimony, cohabitation, cohabitation agreements, or any other aspect of family law in southern California, contact and speak at once with an experienced Orange County family law attorney.