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The Legal Implications of Cohabitating Out of Marriage

Dear Bintel Brief

I know plenty of couples who have, for various reasons, chosen to partner instead of marry. These couples love each other, spend holidays with each other’s families, own property and pets together and some even procreate —  all without the legal contract. Some couples claim their reasons for doing this are financial, or that prefer not to be bound by an institution, while others value marriage equality so greatly that they wouldn’t think to marry until gay couples across the country can legally do so, too.

The recent split of Susan Sarandon and Tim Robbins after more than 20 years together got me thinking: What are the legal ramifications of a non-marriage partnership ending? Are some of the couples I know perhaps destined to face troubles in court if their co-existing, non-state sanctioned relationships ever fizzle? Or, are these couples avoiding potential future legal issues by not walking down the aisle?


Dear TillDeathDoUsPartOrWeDecideWe’reBored:

It is true that not getting married prevents some legal disputes later. If the relationship ends, there is no community property to be divided so what’s yours is yours and what’s your former adored but now abhored’s is his/hers. Under social security laws, a divorced spouse may have rights to the other’s social security payments which the nonmarried ex would not have so that’s something else to fight about.

Here’s what NOT having a marriage license DOES NOT simplify:

1). If you have bought property together, like a house in which both of your names appear on the deed, you will still need to fight (maybe in court) over how to divide it.

2). If you’ve named your non-spouse as a beneficiary on your life insurance policies or your retirement savings plans, you will still need to change the designation even if you were never married to begin with.

3). If you have children together, there will be custody disputes and child support issues to be worked out regardless of the existence of a piece of paper. Anyone who watches Maury Povich will tell you that the baby daddy is the baby daddy even if the baby daddy is not the husband.

4). In some states like California — but not all — there may be a right to non-spousal support (a non-legal term for which is “palimony”).

So to recap: If the state-sanctioned relationship ends, you will be faced with community property issues, social security division under certain circumstances, joint property issues, child support issues, and spousal support issues. If the non-state-sanctioned relationship ends, you will be faced with joint property issues, beneficiary forms to change, child support issues, and non-spousal support issues. So without a marriage certificate, a breakup is slightly less messy.

But there are reasons to get a marriage license that have nothing to do with what happens if the relationship ends, but rather with what happens if the relationship continues. If you have a marriage license, you have rights under the law that nonmarried couples simply do not have. You have the right to receive health benefits under your spouse’s medical plan that is not federally mandated for nonmarried couples. You have the right to make decisions about your spouse’s medical care if your spouse should become incapacitated. You have automatic rights to property and to custody if G-d forbid your spouse dies without a will. And most important, you have the right to get your mother to quiet down already about when you’re going to make this legal. The bottom line is that while a marriage certificate does (slightly) complicate a breakup, it also simplifies a relationship.

Love (maybe),

Amy and Robin

Amy Feldman and Robin Epstein are the authors of the new book “So Sue Me Jackass! Avoiding Legal Pitfalls That Can Come Back to Bite You at Work, at Home, and at Play” (Plume).

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