Legal Issues for Cohabiting Couples

By Marie Hartwell-Walker, Ed.D.

You and your partner have decided to live together. Whether you see it as an alternative to marriage or as a temporary arrangement, it’s important to understand your legal rights and responsibilities. You may see yourselves as being as committed to each other as a married couple but the law doesn’t necessarily view you that way. In most states you do not automatically have the right to help each other in medical emergencies, to benefit from each other’s retirement plans, or to inherit each other’s property. Property that the two of you buy while you are together isn’t necessarily divided equally if you decide to part. If a child is born to one of you, the other doesn’t automatically have parental rights.

It’s true that in some ways it is easier to walk away from an unmarried partnership than a married one but it’s also true that you don’t have the protections that are built into the divorce process. Some of these issues are changing as individual states and communities create laws governing domestic partnerships. But unless and until such laws become universal, it’s important for each couple to take care of themselves and each other by putting paperwork in place that will guarantee that other people will respect your wishes and intent when it comes to important decisions about you as a couple.

Ideally, the time to do these things is before you move in together. It’s easier to come to agreements when both people are motivated by the desire to set up a home. When people put it off until after they’ve already moved in together, they tend to keep telling themselves they’ll “get around to it.” Often they don’t. Challenging issues that could have been discussed rationally before moving in together instead may be avoided to keep the peace. Unfortunately, the couple may then “get around to it” when they are disappointed, angry, and about to break up.

The following self-test will help you clarify your relationship with each other. Talking about the topics raised by this little exercise can help a couple go into their future together more well-informed and more certain of their own and each other’s intentions.

Please note that this is not a scientific test but rather is my best understanding of the issues that affect the likely success of a cohabitation relationship.

Directions: You and your partner should first complete the checklist separately. Check the appropriate boxes, if any, for each item. You may check more than one box for an item. Some items won’t be relevant to your situation. For example, if neither of you is bringing children from a prior relationship with you, you can ignore #13 and #14. If you are past child-bearing age, or if you are absolutely (100%, not 99%) sure you don’t want children, then #15 – #19 don’t apply.

When you are finished, compare your results. Use the list as a point of departure for a very serious discussion about the legal issues that impact an unmarried couple and how you want to deal with them. It’s especially important to address the issues where you find you are not in agreement. Those are the issues that can put particular stress on your couple-ness. Putting things in writing both clarifies your relationship for the two of you and provides the kinds of privileges and protections that married couples have as a matter of course. Your ability as a couple to wrestle with these hard decisions will tell you as much (or more) about yourselves as the checklist itself.

I know what I want I know what partner my wants We agree We put it in writing
1. We have clearly defined the general nature of our relationship between ourselves (experiment? Permanent commitment? Something else?).
2. We have clearly defined how property will be divided should we break up, including that which is “ours jointly.”
3. If we break up, we have decided who will assume the lease (if we rent) or who, if either, will retain the house (if we own).
4.We have defined our ideas and concerns about such practical matters as life, health and property insurance policies and bank accounts.
5. We understand the legal responsibilities for each other’s charge accounts.
6. If one of us goes broke or bankrupt, we have decided the extent of financial responsibility the other should assume to creditors and for maintaining the current bills.
7. We understand how the tax laws benefit or harm us and how this would change if we were married.
8. If we break up, we have an understanding about whether either of us will owe the other any regular monthly payments (“palimony”).
9. If one of us dies, we have a clear agreement about what the partner “inherits” and what goes back to the family of origin or others. This agreement is reflected in each person’s will.
10. If one of us needs to be hospitalized, we have taken steps to give the other visiting rights.
11. If one of us requires medical care, we have agreed how much decision-making power the other has regarding care. (This is particularly important should the ill or injured party not be able to speak for him- or herself). We have notified our relatives of this decision and made necessary legal arrangements.
12. If one of us is divorced, we understand the financial obligations of the divorced partner to his or her former spouse.
13. If one of us has children from a previous relationship, we both understand the parental responsibilities and financial obligations to that child. We also understand the time the parent will spend with the child.
14. If one of us has children from a previous relationship, we both understand the role the new partner is expected to play with that child. We have considered issues such as discipline, time commitment and child care.
15. If the woman becomes pregnant and her partner does not want to become a parent, we have a clear understanding regarding how we will manage this difference.
16. If we have children together, we have clearly defined each person’s relationship to that child.
17. If we have children together, we have a clear understanding of each person’s contribution to the children’s financial support.
18. If we have children together, we have discussed how school officials should deal with us regarding decisions and records.
19. If we have children together and we break up, we have a clear understanding of our time and financial involvement with our children.
20. We set aside a regular monthly meeting to review these matters.


Interpreting your checklist results:

The more you agree, and the more you have in writing, the more committed you are as a couple and the more you are protected both individually and as a couple.

Lots of checks in column A but low in other columns: You know clearly what you want in a relationship but are in the beginning stages of making a relationship with this partner.

Lots of checks in both columns A and B but a low number in columns C and D: Communication lines are open and clear. Working out your agreements will help you clarify your relationship and increase intimacy.

Lots of checks in columns A and B and C but a low number in column D: You are committed as a couple but haven’t taken the legal steps necessary to protect each others’ rights. In the event of illness or death, this oversight could cause the partner unnecessary anguish. Should you break up as a couple, you could find yourselves in a much more angry and hostile fight than you currently imagine possible.

Lots of checks in all columns: You have worked through the important practical matters that all couples face. You have put structures and paperwork in place around issues of legal importance to make sure that your partnership is honored by others.

 

APA Reference
Hartwell-Walker, M. (2008). Legal Issues for Cohabiting Couples. Psych Central. Retrieved on November 25, 2014, from http://psychcentral.com/lib/legal-issues-for-cohabiting-couples/0001370
Scientifically Reviewed
    Last reviewed: By John M. Grohol, Psy.D. on 30 Jan 2013
    Published on PsychCentral.com. All rights reserved.