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The Divorce Encyclopedia

Term Definition Cohabitation - two unmarried people living together as if married.
Application in Divorce Very often two people live together as if married before marriage, after marriage, during divorces or between marriages. These arrangements carry with them special considerations depending on when they happen, i.e., before a marriage or during a divorce.

Cohabitation prior to marriage can create problems later if the marriage fails because the courts must struggle whether and to what extent the premarital cohabitation should be considered in the property distribution.

In general, therefore, marital and family law lawyers recommend that unmarried cohabiting couples enter into a cohabitation agreement. These agreements are sometimes called domestic partnership agreements, and they are in the form of contracts that almost all courts have said are enforceable. The agreement should specify to terms and conditions by which the two people agree to live together, including but not limited to, a statement of purpose, a declaration of separate and/or joint property, language dealing with a prospective residence, income, expenses, support, arbitration provision and termination.

A cohabitation agreement should not make any mention of sexual services (with language such as "love and affection"), as courts as a matter of policy will not enforce agreements where sexual services appear to be a consideration, and it should make clear that the parties in no way are creating a common law marriage. A cohabitation agreement is an explicit contract that deals many of the same considerations of the implied contract of marriage.

An agreement makes property distribution more approachable should the couple marry and subsequently divorce. In the United States, there are two general models of property distribution: all property and dual classification. In the all-property routine (also called the Kitchen Sink states), courts divide equitably any and all property of the parties "regardless of when and how acquired." In dual classification states, property is classified marital and separate. Dual classification states then are further classified as either equitable distribution or community property jurisdictions.

All-property jurisdictions and dual classification states view property acquired or brought to cohabitation in different ways. All-property states typically hold that premarital cohabitation and property may be considered in divorce actions. In dual classification states, courts have held that property acquired during premarital cohabitation is not marital property and not subject to distribution, but contributions made during marriage may be considered in dividing marital assets.

In general, property acquired during cohabitation is not marital, but property acquired in what is called "contemplation of marriage" may be. This is particularly true in the case where the property is in joint title. And courts may consider contributions made during premarital cohabitation in dividing a marital estate.

Sometimes gay couples who are cohabiting find it particularly advantageous to have written agreement because some must deal individually with property considerations that married heterosexual couples need not because of the workings of the operation of law. For example, a guy couple buying a house must spell out the terms and conditions of the joint purchase. By operation of law, a married couple own the house as tenants by the entirety.

Many divorce judgments terminate alimony upon remarriage, and the use of it as a weapon against a former spouse makes divorced parenting all the more difficult for everyone involved. Cohabitation can make for problems later when an ex-spouse, usually an ex-wife who is receiving alimony, cohabits rather than remarrying in order not to lose her alimony.

Cohabitation can be grounds for terminating support in some states and provinces.

Cohabitation with a new partner during a pending divorce from a spouse is usually unwise. Problems arise when a custodial parent takes a new partner during the divorce and the noncustodial parent files motion to prevent such behavior.

See also Palimony.

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