Cohabitation Before Marriage: Pros and Cons

Cohabitation before marriage: Pros and Cons

I am constantly asked by people (usually those who already live together), “Is there any advantage to getting married?  We are practically married, and it just seems like an extra step.”

This always seems like such a weird question for a divorce lawyer, but I generally vaguely respond, “Marriage is grand.  Divorce, a hundred grand”.  I guess with all answers coming from the mouth of a lawyer, the answer is, “That depends”.

Why do People Live Together Without Marrying?

I’ve compiled all the reasons I’ve heard.

  1.  Not ready for marriage; living together is a trial.
  2.  They think they’re already married (because they’ve lived together forever).
  3. They’re same sex and live in a state that doesn’t allow same-sex marriage.
  4. They’re still married to their prior spouse.
  5. They think marriage is dumb.
  6. Not enough money for a wedding.
  7. Personal differences.
  8. Political differences.
  9. What’s the point?

Pros of Cohabitation Without Marriage

  1.  If you are more financially endowed than the other, because of California’s laws on community property and spousal support, in the long run, you probably would NOT benefit from the marriage in terms of dollars and sense.  However, this does not account for the other stuff, such as custody if and when you have children, estate planning if you pass without getting married, etc.

2.  In the short run, you can save money.  You live together, split the costs.

3.  You never establish community property.  Under California law, community property is all property and/or debts acquired AFTER the date of marriage and before the date of separation.  The characterization of property acquired together by unmarried cohabitants is not as clear as community property.  (The fact that it’s not clear actually makes it a CON  – see below – because unclear stuff leads to litigation, the stuff we lawyers charge a lot of money for).

4.  Because you’re not married, you never have to pay alimony (spousal support).  California does not recognize “common law marriage”.  You can live together for a thousand years and the law does not view you as married.  HOWEVER, there is such thing as “palimony” – see below, which again, turns this PRO into a CON.

Cons of Cohabitation Without Marriage

  1.  Your relationship is not clear and not clear means litigation! Everything is fine and dandy until the relationship dissolves, and the jilted one sues.  Sure, you agreed everything is separate, but what about that night, you promised to support her for life?
  2. As the outspouse, you lose all legal protections of marriage.  There is no community property.  There is no spousal support.  There may be a “palimony” claim.  “Palimony” is a word invented by the Court in the Marvin v. Marvin case.  In that case, Lee Marvin was sued by his long-time live-in girlfriend Michelle, based on an oral contract that she claimed existed.  She said he promised to support her for life.  The Court held a written contract is not necessary to establish a “palimony claim”.  What!?!?  So, yes, technically, precedent has said you can sue for “palimony” after a relationships.  But suing someone costs a lot of money.  It’s better to discuss all these ramifications BEFORE entering into a living arrangement so you aren’t spending hundreds of thousands of lawyers after the fact.
  3. Your children born when you’re not married will not have the same rights as children born in a marriage.  Remember the Scarlett Letter days?  These “illegitimate children” were called “bastards”, which creates a major problem when the father dies without a will (also known as dying intestate).  In most states, children born from an unmarried couple need to establish paternity before inheriting from the father.
  4. Likewise, your boyfriend/girlfriend will not inherit from you if you die, unlike your husband/wife.
  5. If you own a house, in California, you have a homestead exemption to protect you from creditors.  It doubles if you are married, NOT just living together.  Same with the $500,000 home sale tax exemption against capital gains.
  6. You will lose out on social security benefits.  Spouses are eligible for the higher of their SSA or 50% of their spouse’s SSA – aka derivative benefits– (whichever is higher) at full retirement age.  This could be significant to a non-working spouse, or one with substantially lesser wages while working.  Additionally, if one spouse dies, the other is eligible to receive the higher of the 2.  HOWEVER, if you were previously married for at least 10 years, and you were entitled to SS benefits; you may LOSE out on the spousal survivor benefits if you remarry.

7.  Studies have shown couples who live together prior to marriage are more likely to divorce.  This has nothing to do with the law.  Just saying.

In summary, there are more cons than pros.  If you are going to live together before you marry, consult with a family attorney and obtain a Cohabitation Agreement which clearly sets forth your rights and obligations before shacking up.

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