FAQ: Family Law

What is the Difference Between Marriage and Cohabitation?

Marriage may not be right for everyone. Some couples, either by choice or because they have no other option, live together without the benefit of a legal union. There are legal differences between marriage and cohabitation relationships, some of which are summarized below.

Marriage

Marriage requirements vary from state to state. Most include that spouses be of opposite sex; however some states now allow marriages between individuals of the same sex. Other general requirements include a license, a waiting period, blood tests, minimum ages and a ceremony officiated by a clergyperson or an officer of the court and witnesses. When a marriage ends, it must be ended by a formal, legal divorce or annulment process that can be costly, time consuming, complicated and emotionally draining. Divorcing spouses also have the obligation to divide their property by legally prescribed methods.

When a married couple divorces, the wage-earning or higher-wage-earning spouse may have the obligation to provide support for the other spouse upon separation or divorce. Likewise, after separation or divorce, the non-custodial parent generally is legally obligated to help financially support the children of the marriage. Children of the marriage may be biological or presumed. Children born during the marriage are presumed to be the offspring of the husband and wife. Children born to married couples must be financially supported during the marriage.

Married spouses also have the legal right to receive information about the other spouse or make decisions if the other spouse is not able to. If one spouse becomes ill or incompetent, the other spouse generally has the right to make decisions on the ill spouse's behalf. When one spouse dies, the other spouse has the legal right to inherit a portion of the deceased spouse's estate.

Cohabitation

Cohabitation may be entered into at any time, by individuals of any age or gender, without formal requirements. The relationship may be ended simply and informally upon the agreement of the parties. However, the emotional costs may be the same as or similar to those experienced at the end of a marriage. Dissimilar to marriage, when a relationship concludes, the parties may divide the property however they choose. Absent statutory guidelines, as in divorce, the couple must reach a mutual agreement.

Furthermore, in contrast to divorce, couples who live together usually do not incur the obligation to support each other after the relationship ends, unless they have entered into a contract providing otherwise. If the couple has a child, support may be an issue. The father of a child born to unmarried cohabitants is not entitled to a legal presumption of paternity and may have to establish his paternity through blood tests and a legal action. If the cohabitating couple has not signed an agreement signifying the child’s father, paternity must be established in order to compel child support payments. If parentage is established, the non-custodial parent has the same legal obligation to support his or her children as legally separated or divorced parents

Moreover, there are no survivorship rights between cohabitating individuals as there are between married couples. No matter how close the bond or how long the relationship has existed, a cohabitant may lose out to immediate family members when it comes to making decisions for an incapacitated unmarried partner, unless a general power of attorney and health care power of attorney give that authority to the cohabitating partner. As follows, when one cohabitant dies, his or her property will pass to whomever is named in the will or, if there is no will, to family members according to the laws of intestate succession. The surviving partner has no claim to the estate unless he or she was named in the deceased partner's will.

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