The idea of cohabitation between partners has become more commonplace in the United States in the past several years. In some respects, an increase in cohabitation among romantic partners grew due to laws prohibiting same-sex couples from marrying. After same-sex marriage was validated across the United States, many couples elected to take advantage of their ability to marry under the law. However, this change does not mean that cohabitation among partners is now no longer prevalent in Indiana and across the US. It is!
Couples may cohabit for a variety of reasons – younger individuals are choosing to cohabit before marriage at an increasing rate; partners with children may choose not to marry for a variety of reasons; some who have been “burned” by a past marriage may vow never to get married again but have found a new partner with whom they enjoy sharing their life; some may want to avoid the expense and stress of a wedding. Whatever the reason, many Hoosiers are electing to cohabit for a period of time before getting married or are electing to cohabitate for a long period of time without even the thought of marriage. A report from the U.S. Department of Health and Human Services shows that as of 20151:
- 1% of women and 15.9% of men were cohabiting
- 9% of women and 43.5% of men were married
- 0% of women and 40.6% of men were unmarried, and not cohabiting
Because of the trend and statistical data backing up that more individuals choose to cohabitate, whether temporarily, long term, or permanently, it is important to understand some important legal considerations when people choose to cohabitate; many of these topics are ones that people might not think of and that can ultimately turn out poorly, or cause a lot of trouble, in the future. What “cohabitation” means in a legal sense and the four key points you must know is the focus of this blog post.
Legal Meaning of Cohabitation. As a threshold matter, it is important to define what cohabitation means. Under Indiana law, the definition is not quite clear. Typically, we think of cohabitants as a couple in a romantic/sexual relationship. However, in cases where the definition of a “cohabitant” was relevant, the Indiana Court of Appeals did not limit the definition of cohabitant to those in a sexual or romantic relationship. So, while cohabitants may be broader than two individuals who are in a romantic relationship, this blog post will mostly address how Indiana law may treat romantic cohabitants differently than married couples and how cohabitants can take steps to ensure that their relationship meets their long-term goals and intent. Here are some things that a cohabitant may not know and must recognize to potentially protect themselves.
There is no common-law marriage. There is a belief among some that if certain requirements are met, for example, if a couple lives together for a certain period of time, they are married by operation of law. This concept is prohibited in Indiana.2 Simply put – if you have not gotten married, then you are not married.3
Marriage is a contract. While this concept may sound unromantic, getting married, legally speaking, is two people entering into a contract, and with that contract come certain implications under the law. One of the most important concepts of this “contract” is that each individual’s assets and debts become part of the “marital estate.” Unless the individuals getting married enter into another contract (e.g., pre-nuptial agreement), if a married couple divorces, there is a presumption that property (houses, cars, bank accounts, retirement accounts, etc.) will be split 50-50 regardless of who brought what into the relationship, in whose name the property is titled, or who earned the most money. If you are cohabitating but unmarried, this is not necessarily the case.
Typically, to avoid a situation where a cohabiting couple splits and there is a very unequal property division, a cohabiting couple can enter into a contract with each to make clear who owns what property or who gets certain property in the event the relationship ends. If there is not an agreement (in writing), then one who is left on the “losing end” of a cohabitation split may have no choice but to make what is called an “equitable” argument – meaning that one should be entitled to some of the property because it would be “fair” or that the person who owned the most property was “unjustly enriched.”4 At least for personality without a title, the old adage, possess is 9/10th of the law may come into play. If a party has an item, it may be hard to impossible to obtain any possession or value. This is a much more difficult path than if the partners had reached an agreement and reduced it to writing with the help of an attorney.
Refraining from getting married affects what happens to your estate. Generally speaking, if a person dies without a will and estate plan in Indiana, their property will be distributed pursuant to what is called an intestacy plan. Again, generally speaking, the property goes via the intestacy plan/schedule to spouses, children, and blood relatives pursuant to a hierarchy established by Indiana probate statutes. Here is what is not listed in the intestacy statutes: life partners, girlfriends, boyfriends, roommates, best friends, co-habitants, or any other such term. So, if the cohabitating couple does not plan and make their wishes known in the event of one’s passing, then it is possible for two cohabitants to live together for a long period of time and share their lives together, but upon one of their deaths, for his or her property to go to a long-lost sibling rather than the co-habiting partner. This happens all of the time. Because cohabitating couples may not receive the presumptions that a married couple does under the law, it is a great idea to establish a plan with an attorney to ensure that your wishes and goals are not interfered with simply because you’re not married.
Refraining from getting married affects how parental rights are established. There is a presumption in Indiana that if a child is born to a married couple, then the married couple is the child’s parents.5 If a child is born to one cohabitant (Partner A), it is not necessarily true that the other cohabitant (Partner B) is established as the parent of the child for legal purposes. In the case of a male-female relationship, Partner B may have to sign a paternity affidavit or file a petition for paternity in court.6 In the case of same-sex couples, it may be necessary for one or both of the individuals in the couple to adopt the child or take other means to establish their relationship with the child. All too often, people do not take such courses of actions because (1) they don’t know they have to, (2) they intend to “do it later,” (3) they think the relationship will never end, or (4) they think that their current partner would never enter into a custody battle with them. These people are often sorry they did not act early, and sometimes, there are catastrophic results with respect to the time and the ability they have to parent a child with whom they’ve developed a relationship.
There are many other issues that cohabitating couples may want to address with competent counsel to protect themselves and to outline their goals as their relationship develops over time, and the issues above are just a few. Ciyou & Dixon, P.C. attorneys’ practice throughout the State of Indiana and understand the issues surrounding a couple that wishes to grow and live together without getting married and legal tools to consider if this is your situation. This blog post is written by Ciyou & Dixon, P.C. attorneys and is not intended as specific legal advice or a solicitation for services. It is an advertisement.
- “A Demographic, Attitudinal, and Behavioral Profile of Cohabiting Adults in the United States, 2011–2015.” Nugent, C.N. and Daugherty, J. National Health Statistics Report, No. 111, May 31, 2018. (accessed Feb. 25, 2019).
- Ind. Code § 31-11-8-5.
- The attorneys at Ciyou & Dixon, P.C. are making this statement broadly. There may be some exceptions from other jurisdictions or some extreme cases where the concept of a common law marriage may be recognized. For the most part, though, the notion of a common law marriage has long been phased out of the law.
- For example, Partner A earns a high salary, buys the house in A’s name, buys the cars in A’s name, etc., and Partner B takes care of the house, refrains from getting employment to look after children during the work-day, etc.
- Of course, circumstances like adoption, surrogacy, etc. warrant additional considerations that are outside the scope of this post.
- Generally speaking, a listing on a birth certificate does not establish paternity.