Today, it is common for unmarried couples to live together. For some, cohabitation is a precursor to marriage while many others choose to live together without making marriage a goal. Despite this societal trend, many states' laws related to shared property and individuals' rights to make decisions on behalf of their intimate partners only apply to married couples.
People in cohabiting relationships have the same individual rights all other U.S. citizens have and in certain scenarios, they have additional rights similar to those enjoyed by married individuals. Which of these specific rights a cohabiting individual has depends on the state where she lives and whether she meets its criteria for having these rights. In certain states, unmarried couples who meet the criteria for "common law marriage" can access some or even all rights married couples enjoy.
Real Property Rights
In a community property state, if a couple pays a mortgage out of their joint earnings, both have an interest in the property regardless of whose name is actually on the title. This means the property must be divided between them in the event of a breakup, which is easier to ensure when both partners' names are on the property's deed, its lease or if the couple has a written agreement outlining each party's interest in their shared assets.
Not all states are community property states. Most states are equitable distribution states, which means that when a marriage ends, the court divides their shared assets according to what it deems appropriate based on certain relevant factors about the couple, like their incomes and which party invested more money in the couple's home. In states that recognize legal separations, these principles can be used to divide a separating couple's assets as well. When an unmarried couple in one of these states, which include Florida and New Jersey, breaks up, any singularly held property remains in its original owner's possession unless the other partner can prove there was the intention to add her name to its deed.
To avoid one partner losing her right to a share of her home in the event of a breakup, an unmarried couple interested in buying a home should work with a real estate lawyer to create a tenants-in-common or a joint tenancy agreement.
Another option for preventing a live-in girlfriend from losing access to assets is for the couple to get married. Once the couple is married, all of the assets they obtain are automatically marital property, with the notable exception of assets obtained through inheritance or as gifts. Additionally, all separately owned property that changes in value after the marriage, such as a home one partner purchased before marrying that becomes more valuable through his spouse's efforts, becomes commingled property. This means that the portion of the asset's value that changed because of the couple's actions during their marriage, like the increased home value in the previous example, belongs to both parties and is subject to distribution in their divorce. Before entering a marriage, it is recommended that individuals with substantial assets seek legal advice.
Right to Her Own Property
An individual in a cohabitation relationship always has the right to her own property. This means her income cannot be garnished to cover her partner's medical expenses or any other financial obligations, like child support payments. Only bank accounts that bear both partners' names may be garnished to cover one partner's financial obligations.
Right to be Free of Abuse
Every person, regardless of his marital or cohabitation status, has the right to live without fear of facing domestic violence from a partner. Additionally, every domestic violence victim has the right to take legal action to protect himself from abuse, such as filing a domestic violence charge against his alleged abuser and obtaining a restraining order against a partner.
Medical and End of Life Rights
Cohabiting partners have few, if any, medical and end-of-life rights to each other. This includes the right to information about each others' conditions and the right to make decisions regarding their treatment and resuscitation actions. The only circumstance under which a cohabiting partner has these rights is when she has medical power of attorney for her partner, a right an individual can grant to his partner by working with an estate planning lawyer.
In some states, cohabitating partners have property and decision-making rights. In every state, they have the right to be free from abuse.
Lindsay Kramer is a freelance writer and editor who has been working in the legal niche since 2012. Her primary focus areas within this niche are family law and personal injury law. Lindsay works closely with a few legal marketing agencies, providing blog posts, website content and marketing materials to law firms across the United States.