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There are millions of Americans who live together, but never become formally “married.” What are their rights? Who gets the house, the car, the bank accounts if they break up or one of them dies? We talk to a noted contract and family law attorney who has written extensively on the subject to find out how society and the courts view cohabitation relationships. We also discuss what cohabiting couples should do to prevent problems with the law.

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  • Martha Ertman, Professor of Law specializing in contract and family at the Carey School of Law, University of Maryland, and author of the book, Love’s Promises: How formal and informal contracts shape all kinds of families

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The Legal Side of Cohabitation

Gary Price: When two people get married and set up housekeeping together the law in each state is pretty definite in the rights each party in the relationship has. These days though there are more than just the traditional marriage agreements to consider. Millions of Americans, from every state in the union, are living together without being formally married. This can pose a problem if the relationship ends, especially if there are assets and children to consider. Martha Ertman recognized this and decided to offer people in non-traditional relationships some advice on what landmines they could encounter along the way. Ertman is a Law Professor at the University of Maryland’s Carey School of Law and has taught, written, and spoken extensively on contracts in family law. She’s also the author of the book, “Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families.” She says cohabitation is nothing new, in fact in this country it was a way to keep society going when people lived in far-flung parts of the country.

Martha Ertman: Common law marriage came up in an age where we didn’t have formal registration. There weren’t so many clergy; there weren’t so many courthouses to be able to do that. Or it could be you’re married to one person and you move out to Iowa, then you move in – you shack up with somebody new, and hold yourself out as married – the last then has to decide which marriage counts.

Price: Ertman says that the oft-heard provision that a couple had to be together for 7 years before they can be considered to be married by common law is a myth.

Ertman: It is a complete myth that you have to do it for any period of time. The test is, living together and holding yourself out as what used to be “husband and wife” now it could be “wife and wife” or “husband and husband.” But if you’re living together but you just call each other boyfriend or girlfriend, you can’t be common law married. So really it’s the social relationships. Today there are about 12 jurisdiction that do recognize it, the problem is most people don’t know what kind of jurisdiction they’re in. So if you’re in the District of Columbia, you can be common law married but just a walk away in Maryland or Virginia, you can’t be common law married.

Price: One of the reasons Ertman says she wrote the book in laymen’s terms was to make sure people understood all of the legal ramifications and provisions or the relationships they undertake. It’s good to know for example, that if you are common law married in Washington D.C or any stay that allows it, generally speaking your marriage is recognized in states where there is no common law marriage. To find case law and history on cohabitation we don’t have to go back to frontier days – anyone who is over 50 years old will remember the big Hollywood ‘palimony’ case involving actor Lee Marvin and his partner Michelle Triola.

Ertman: It gave us the language, the word ‘Palimony’ came out of that case and the tremendous media attention that resulted when it came down out of the California Supreme Court in 1976. So ‘palimony’ is the cross between “pal” and “alimony” and the idea is that if you lived together, and in the Lee Marvin/Michelle Triola situation, she said “I’ll give up my singing career if you support me for life” or he said “if you give up your singing career, I’ll support you for life” and that was the first time a court said that is a legally binding promise. Now what most people don’t know is after the Supreme Court said she could sue the lower court said she hadn’t really proved up all the things she had to prevail and it was later people who actually go to get some compensation for the work they did.

Price: But why go through all of that if you’re in a committed relationship, own a house together, joint accounts, maybe even have children? Why not just get married and forgo the potential problems?

Ertman: One of the things I learned about as I was researching this book about all the reasons people don’t get married. Sometimes it’s law; if you’ve got one spouse you can’t get another spouse, some people think, “Ugh, marriage is so old-fashioned.” I think we’re going to have that question be answered in the near future because same-sex marriage calls the question. Now that gay people can get married in any state in the union, the question is whether these alternatives that are known my different names like – civil unions and domestic partnerships and reciprocal beneficiaries in different states – whether those alternative will go by the wayside and I hope they don’t, because love comes in different packages.

Price: Ertman says that some of those packages involve strong bonds between two people without romantic love and she says these people should be considered “partners” despite the fact that they never would get married.

Ertman: Often times some might be adult sisters who are the hugest thing in each others lives; they may live together, they share a bank account, and it’s unfair to treat them different from a spouse relationship.

Price: A marriage license isn’t the only legal document that can provide property division and financial stability for a non-spousal partner. Both partners can also make out wills to care of the issue. Ertman agrees that a will is a good idea; unfortunately most Americans never get around to drawing one up.

Ertman: The law saw this to say, “Ok you have freedom of contract. If you want to make a will – have at it.” But for the vast majority of people who don’t get around to it; whether they don’t want to think about their death, or they don’t want to make the decisions, or it’s just intimidating, or expensive, then the law has to have a background rules and that’s where these statutes called “Intestacy Statutes” come in saying if you don’t bother to make a will, it goes to the people we define as your family. And that could be somebody you’ve lived together with, that’s one way that the cohabitation ‘us-ness’ could get recognized and in fact has been recognized in some of the case I talked about.

Price: It seems that right now no matter how a couple decided divvy up the assets and property – if they aren’t married, they need to write their intentions clearly. That way if there are any disputes, the court has more than “he said/she said” to go on.

Ertman: Contract law has this term called, “Statute of Frauds,” that says certain kinds of agreements have to be in writing to be legally binding. So if it’s an agreement about selling your house – that has to be in writing to be binding cuz it’s such a big transaction. Some states require living together agreements to be in writing in order to be binding. One of the proposals I put forward in the book is that there shouldn’t be that writing requirement because so many people reasonably expect that the oral promise will count. And so I would say, if you were acting like an “us” if you are sharing your bank accounts, if you’re sharing your lives together socially and emotionally, then the law should treat you like an “us” and enforce that promise.

Price: Ertman has included some sample contracts in the book for people who want to take the safe round and spell out the relationship on paper.

Ertman: In the back of the book there’s an appendix with real life contracts, there’s an example of a really short co-habitation agreement that people could enter both with legal promises like, “we share property that comes into the household while we’re in our relationship” but also things that are not legally binding, these arrangements I call “Deals.” So for example, one of the clauses I put in there says there is a cooling off period of 3 days; nobody gets to end the relationship without taking a 3 day break, basically taking a very long walk around the block and then at the end of the 3 days you still want to end the relationship then you can do it. But it may well be you did it with a little clearer head and there therefore make arrangements that are probably a little more fair in the long run.

Price: As she said earlier there are many different ways that people love each other and governments shouldn’t make it difficult for them to deal with the legal aspects of their relationships. Ertman says that creating laws for cohabitation isn’t that complicated if you look at these non-traditional partnerships as off shoots of the traditional marriage agreement.

Ertman: One thing that’s fortunate or just “is” is that there are patterns – most people are heterosexual, most people do get married at some point in their lives, most people are raising children that they are genetically related to – because those are the most common arrangements, I call that Plan A and the family law rules properly would say, ok if most people get married at someone point often more than once, then that makes sense to be the default for particular rights and duties. But if instead there are variations like being an adoptive mother you have a little different set of rules, you get an adjective associated with it; “adoptive” before mother, and there can be special rules for it. So I think that it’s not as complicated as it seems if you recognize there’s a general rule that’s gonna apply to probably 9 out of 10 situations. But you still need exceptions for the last 10%.

Price: Martha Ertman explains the legal ins and outs of marriage and cohabitation in her book, “Loves Promises,” available in stores and online. She also addresses the legal agreements for different types of parenting arraignments such as surrogates, co-parenting, and adoption in the book. You can find out more about Ertman and her work at the University of Maryland Carey School of Law, at Law.UMaryland.Edu. For information about all of our guests, log on to our site ViewpointsOnline.Net. You can find archives of past programs there and iTunes and Stitcher. I’m Gary Price.