Cohabitation generally refers to a man and a woman living together in an intimate sexual relationship without marrying. Occasionally, the term is used to describe gay or lesbian couples who live together.
In a few states, cohabitation (in this context, living intimately with a person of the opposite sex) brings about a termination of alimony, if the paying spouse can show that the recipient spouse and new lover live together, share expenses and are generally recognized as a couple. In other states, an alimony recipient who begins cohabiting is automatically presumed to need less alimony than originally awarded. If the recipient objects, it is her burden to show that her needs have not decreased.
Also, in some states, a parent who cohabits may have difficulty obtaining custody of her children. Cohabitation is still a crime in some places, though rarely is anyone prosecuted for it. Some people describe a cohabiting couple's relation-ship as a meretricious relationship.
Only two states, Illinois (Hewitt v. Hewitt, 394 N.E.2d 1204 (1979)) and Georgia (Rehak v. Mathis, 238 S.E.2d 81 (1977)), have expressly failed to recognize cohabitation agreements.
An extended family is one which includes persons in addition to or other than parents and children. Extended family can also mean a circle of people in a close relationship. For example, for many lesbians, gay men and other non-married people, the term extended family refers to a small, close group of friends who provide support for one another in much the same way a traditional family supports its members.
POSSLQ (Persons of the Opposite Sharing Living Quarters)
POSSLQ is a U.S. Census Bureau phrase coined to describe members of the opposite sex who live together without getting married.
This phrase is used to describe two people (either of the opposite sex or of the same sex) who cohabit, have a sexual relationship and experience economic and social integration - that is, two people who have created their own family.
Currently, most states restrict marriages to the union of one man and one woman. Same-sex couples, therefore, cannot marry in most states. (This may change,however, as lesbians and gay men continuously challenge various states' laws.) Denying lesbian and gay couples the right to marry means they cannot obtain the legal and economic benefits of marriage, such as:
- filing joint income tax returns
- claiming dependency benefits, such as leave to care for a sick or disabled spouse, as well as Social Security and death benefits
- inheriting from each other under state automatic inheritance laws (although they may leave each other property in their wills), and
- obtaining family rates for insurance, mortgage, loans and credit.
Same-sex couples are also denied the emotional and psychological benefits of marriage. To compensate, many lesbian and gay couples enter into cohabitation agreements, purchase property together, name each other as beneficiaries in wills and insurance policies, and participate in "union" ceremonies.
Only Scandinavian countries let lesbians and gay men have legally sanctioned relationships. Denmark and Norway permit same-sex couples to form a registered partnership, with full inheritance rights and the same duty to support each other that married heterosexual couples have. They must also divorce to end the relationship. Sweden gives gay and lesbian couples the same common law rights as unmarried heterosexual couples. France has a nationwide domestic partners law.
An adult who is not legally responsible for the care, support and custody of a child, but who has assumed the care, support and custody of a child together with the child's legally responsible parent, is sometimes called a co-parent.
Stepparents who have not adopted their stepchildren are co-parents; however, the term is rarely used for stepparents. It is more commonly used by unmarried couples jointly raising a child for whom only one of them is legally responsible. Because same-sex couples cannot biologically parent one child, cannot marry (and become stepparents) and virtually all have been denied the right to jointly adopt (usually one person adopts and together they raise the child), co-parenting has become an important concept in the lesbian and gay community.
A second-parent adoption (also called a co-parent adoption) is an adoption of a child by the unmarried partner of the child's legal parent. Second-parent adoptions have been granted to lesbians and gay men who are the partners of the biological parents.
A two-parent adoption is an adoption of a child by an unmarried couple. Like second-parent adoptions, a number of two-parent adoptions have been granted to lesbian and gay couples.
States that have granted second-parent or two-parent adoptions to lesbian or gay couples include Alaska, California, Massachusetts, Minnesota, New Jersey, New York, Oregon, Vermont and Washington.
Gay or Lesbian Lifestyle: Effect on Custody
If a divorced or separated parent is gay or lesbian, many courts deny or strictly limit the parent's custody of or visitation with her children. In addition, some courts, when the parent's sexual orientation becomes known, modify existing custody and visitation orders. In a few states, however, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of her child. As a practical matter, however, lesbian and gay parents in those states may still be denied custody. This is because judges, when considering the best interests of the child, may be motivated by their own prejudices as well as by the prejudices of the community and may find reasons other than the parent's sexual orientation to deny the lesbian or gay parent custody.
A property or cohabitation agreement is a contract entered into by an unmarried couple (heterosexual, lesbian or gay) living together to arrange property rights. Sometimes, the agreements also spell out custody, child support and alimony-like support arrangements in the event the couple breaks up or one partner dies.
Until 1976, courts generally did not enforce cohabitation agreements because they reasoned that the underlying sexual relationship formed the basis of the contractual relationship and that the agreement therefore improperly arranged an exchange of sex for money (that is, prostitution). In 1976, however, the California Supreme Court ruled in Marvin v. Marvin (18 Cal.3d 660) that cohabiting couples in California could contract.
Marvin v. Marvin
The decision said that unmarried couples may make enforceable contracts with each other regarding property and alimony-like support, and that where there is no explicit contract but the actions of the parties make it appear as though there is an understanding, the court may imply a contract to exist and enforce it. The decision does not give cohabiting couples the property rights of married people, but rather allows them to have their contracts and understandings enforced in court. There is no minimum number of years that a cohabiting couple must live together in order to obtain these rights. The Marvin case has been extended to same- sex couples. (Whorton v. Dillingham, 202 Cal. App. 3d 447 (1988).) The result is that adults who live together and engage in sexual relations are legally able to form contracts regarding their earnings and property rights.
Example: Let's look at the Marvin case itself. Michelle Triola (who called herself Michelle Marvin) lived with actor Lee Marvin for a number of years. She claimed that she gave up her own career in exchange for becoming Lee Marvin's homemaker and an agreement that she would be entitled to half his income. When the couple separated, Michelle sued Lee for a lot of money. No written contract was produced, but Michelle insisted that an oral agreement had been made. The California Supreme Court allowed her to proceed on the basis of the oral contract and on the implied contract theory. In the end, a jury awarded Michelle nothing because she was unable to prove the contract or that her worth as a homemaker was worth the money she claimed.
Marvin in toto is followed by only a few states. Most states follow the express written and oral contract theories, but many have rejected the implied contract theory. Also, no court will apply the Marvin principle when the sole "services" provided by a person are sexual in nature. In fact, even in states which follow Marvin, courts do not recognize a contract which contains any mention of sex. Other states that have enforced cohabitation agreements include:
- Alaska - Levar v. Elkins, 604 P.2d 602 (1980)
- Arizona - Carroll v. Lee, 148 Ariz. 10, 712 P.2d 923 (1986), Cook v. Cook, 142 Ariz. 573, 691 P.2d 664 (1984)
- Connecticut - Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987)
- Florida - Poe v. Estate of Levy, 411 So. 2d 253 (1982)
- Hawaii - Maria v. Frietas, 832 P.2d 259 (1992)
- Indiana - Glasgo v. Glasgo, 410 N.E.2d 1325 (1980)
- Iowa - Slorum v. Hammond, 346 N.W.2d 485 (1984)
- Maryland - Donovan v. Seuderi, 51 Md.App. 217, 443 A.2d 121 (1982)
- Massachusetts - Green v. Richmond, 369 Mass. 47, 337 N.E.2d 691 (1975)
- Michigan - Carnes v. Sheldon, 109 Mich. App. 204, 311 N.W.2d 747 (1981), Tyranski v. Piggins, 44 Mich. App. 570, 205 N.W.2d 595 (1973)
- Mississippi - Pickens v. Pickens, 490 So. 2d 872 (1986)
- Nebraska - Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981)
- Nevada - Hay v. Hay, 100 Nev. 196, 678 P.2d 672 (1984), Warren v. Warren, 94 Nev. 309, 579 P.2d 772 (1978)
- New Hampshire - Joan S. v. John S., 121 N.H. 96, 427 A.2d 498 (1981), Tapley v. Tapley, 122 N.H. 727, 449 A.2d 1218 (1982)
- New Jersey - Crowe v. DeGioia, 90 N.J. 126, 447 A.2d 173, appeal after remand, 303 N.J. Super. 22, 495 A.D.2d 889, aff'd, 102 N.J. 50, 505 A.D.2d 591 (1986)
- New Mexico - Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (1980)
- New York - Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 407 N.E.2d 438 (1980)
- North Carolina - Suggs v. Norris, 88 N.C. App. 539, 364 S.E.2d 159, cert. denied, 322 N.C. 486, 370 S.E.2d 236 (1988)
- Oregon - Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978), Ireland v. Flanagan, 51 Or. App. 837, 627 P.2d 496 (1981)
- Pennsylvania - Mullen v. Suchko, 279 Pa. Super. 499, 421 A.2d 310 (1980)
- Texas - Small v. Harper, 638 S.W.2d 24 (1982)
- Washington - In re Estate of Thornton, 81 Wash.2d 72, 499 P.2d 864 (1972)
- Wisconsin - Watts v. Watts, 137 Wis.2d 506, 405 N.W.2d 303 (1987), Matter of Estate of Steffes, 95 Wis.2d 490, 290 N.W.2d 697 (1980)
- Wyoming - Kinnison v. Kinnison, 627 P.2d 594 (1981)
Example 1: Rose and Ted have lived together for four years. They've never had any written agreement, but their behavior has been consistent: they've purchased a car, an oak table and a china set, with each one paying half. If they split up, a court is likely to imply an agreement and equally divide the items purchased together.
Example 2: Jon and Steve plan to buy a fixer-upper house and move in together. Jon is a carpenter; Steve is a university professor who makes nearly twice as much as Jon. Jon and Steve plan to own their home equally, so they agree in writing as follows: Steve will pay two-thirds of the mortgage, and Jon will pay one-third. Steve and Jon will equally pay for the materials to fix up the house, and Jon will contribute all the labor. Steve and Jon also agree to equally own all the property, furniture and fixtures they buy once they move in together.
Palimony isn't a legal term; it was coined by journalists to describe the division of property or alimony-like support given by one member of an unmarried couple to the other after they break up.
Trusts: Resulting and Constructive
A trust is a right in property held by one party for the benefit of another. When there is no official trust instrument, a trust may still be found under certain circumstances in order to enforce agreements as to property and income of domestic partners:
Resulting Trust: If the transaction indicates a trust was intended by the parties, it is called a resulting trust.
Constructive Trust: When no such intent can be found, but the one holding the property would benefit unjustly, especially where there is a close relationship between the parties or there is a difference in financial sophistication, then a constructive trust is said to occur.
Uniform Pre-Marital Agreement Act
This act has been adopted in 11 states (Alaska, California, Hawaii, Maine, Montana, North Carolina, North Dakota, Oregon, Rhode Island, Texas and Virginia). It provides legal guidelines for unmarried couples who wish to make agreements in anticipation of marriage regarding ownership, management and control of property; property disposition on separation, divorce and death; alimony; wills and life insurance beneficiaries. The statute expressly prohibits couples from including provisions concerning child support. Pre-marital agreements are permitted in states that haven't adopted this uniform statute, but are subject to different guidelines in those states.
Property for Folks Living Together
Joint tenancy is a method by which people jointly hold title to property. All joint tenants own equal interests in the jointly owned property. When two or more persons expressly own property as joint tenants, and one owner dies, the remaining owner(s) automatically take over the share of the deceased person. This is termed the right of survivorship. For example, if two people own their house as joint tenants and one of them dies, the other person ends up owning the entire house, even if the deceased person attempted to give away her half of the house in her will.
In most states, one joint tenant may, on her own, end a joint tenancy by signing a new deed changing the way title is held; then, she is free to leave her portion of the property through her will. Because joint tenancy property isn't passed through a will and thus doesn't go through probate, joint tenancy is a popular technique to avoid the costs and delay often associated with the probate process.
Tenancy in Common
Tenancy in common is a way for any two or more people to hold title to property together. Each co-owner has an undivided interest in the property, which means that no owner holds a particular part of the property and all co-owners have the right to use all the property. Each owner is free to sell or give away his interest. On his death, his interest passes through his will or living trust, or by intestate succession if he had no will or living trust.
Tenancy in common differs from joint tenancy, where the property passes automatically to the surviving co-owners on one own's death, regardless of any will provision. Tenancy in common is a more appropriate form of title than joint tenancy when co-owners do not have a close personal relationship, such as when individuals are all willed a home and find themselves joint owners.
Estate Planning for Unmarried Folks
Intestate succession is the method prescribed by a state to distribute a person's property when he has not provided for its distribution in a will. Although the details of these laws vary from state to state, the normal scheme is to distribute the deceased person's property to his spouse and children. When an unmarried partner dies, this means that unless she created a will or other estate planning document, her property will be divided among her parents, siblings, aunts and uncles, nieces and nephews and then more distant relatives. Her partner will receive nothing.
A will is a legal document in which a person (called the testator) states various intentions about what he wants done with his debts, property and minor children after his death. Will provisions must be carried out unless they are illegal or impossible. A will allows a person to:
- name beneficiaries (people or organizations) to receive the testator's real property and personal property
- forgive debts owed to the testator
- name a guardian of the testator's children in the event there is no other biological or adoptive parent to care for the children
- create trusts in which property can be put and managed by a trustee until the person who is left the property reaches a certain age or dies
- name an executor of the will, that is, the person who will manage the testator's property, deal with the probate court, collect the testator's assets and distribute them as identified in the will after the testator dies, and
- disinherit relatives by specifically excluding them, not naming them in the will or leaving them very little, such as $1.
A trust is a right in property held by one party for the benefit of another. Trusts are entered into for many reasons, including maintaining control over assets, avoiding probate and avoiding inheritance taxes.
There are two basic types of trusts:
Testamentary. This trust is created by a will or living trust and takes effect only at death. It does not have tax advantages, but allows the beneficiary to use the property during her lifetime; the remaining principal goes to a second person after the beneficiary's death.
Living (also called inter-vivos trusts). The trust creator establishes this trust during his lifetime; the trust continues after his death. It is used to avoid probate. There are two kinds of living trusts: -- Revocable. The terms, conditions or even beneficiaries of a revocable trust can be altered or revoked. It is managed by a trustee and income is paid to the creator of the trust during his lifetime. At death, the principal is paid to the beneficiaries. The advantage of creating this type of trust is avoiding probate. The property is still considered part of the trust creator's estate, however, so the estate will have to pay inheritance tax. -- Irrevocable. Once this type of trust is set up, it cannot be revoked or altered. The advantage of forming this type of trust is that the trust creator pays no taxes on the trust income he receives during his life. At his death, the trust property passes to the beneficiaries, but because the property is not considered part of the trust creator's estate, the estate pays no inheritance tax.
Sex and the Unmarried
Fornication means sexual intercourse between unmarried persons. In some states, if one person is married it is still fornication; other states call sexual intercourse between an unmarried person and a married person adultery. Other states, when referring to sexual intercourse between an unmarried person and a married person, call the unmarried person a fornicator and the married person an adulterer. Fornication is illegal in many states. If a state prohibits fornication, a court may refuse to uphold a cohabitation agreement on the ground that because the relationship covered by the agreement is illegal, the agreement is unenforceable.
Some courts, especially those in states where fornication is illegal, describe a cohabitation relationship as meretricious, meaning "of an unlawful sexual nature."
Sodomy generally refers to any "unnatural" sexual intercourse. It usually means anal and oral sex. Consensual sodomy is a crime in just less than half the states; most of these laws are interpreted as prohibiting homosexual sex. The U.S. Supreme Court upheld the constitutionality of state laws prohibiting homosexual sodomy in Bowers v. Hardwick, 478 U.S. 186 (1986).
Sodomy laws are often used to justify various forms of discrimination against lesbians and gay men, including the denial of child custody and the refusal to recognize cohabitation agreements. The rationales used by the courts include:
- people who are criminals (that is, engage in the crime of sodomy) should not be allowed custody, and
- if a state prohibits sodomy, the relationship covered by the agreement is illegal and therefore the agreement is unenforceable.
Rights RE: Loss
Loss of Consortium
Consortium is the relationship between a husband and wife, which includes love, affection, fellowship and sexual companionship. If a third party interferes with that relationship (for example, a neck injury disables the husband from having sexual intercourse), the spouse who loses elements of consortium can sue the third party on that ground. Although cohabiting and same-sex couples have argued that loss of consortium statutes should apply to their relationships as well, virtually no states have applied the law to them.
A wrongful death action is a lawsuit brought by a survivor (someone who outlives another) of a deceased person. In such a lawsuit, the survivor claims that the deceased was killed due to the wrongful act of a third person (the defendant). Only a person who had a certain relationship with the deceased person (a parent, child or spouse usually) may sue for wrongful death. In nearly all states, cohabiting and same-sex couples are not allowed to sue for wrongful death.
An unmarried man who impregnates a woman is referred to as an unwed father. Unwed fathers have few rights concerning their children. For example, an unwed father does not have the right to require the mother of the child to obtain his consent, or even notify him, before she undergoes an abortion. If the mother decides to bear and keep the child, however, the unwed father will be required to pay child support if a court determines or he acknowledges that he's the father; in addition, he may seek custody or visitation.
If the mother of the child decides to place the child up for adoption, or if she has married and her husband (that is, the child's stepparent) wants to adopt, the court must terminate the parental rights of the unwed father before granting the adoption. The unwed father may oppose the termination of his rights and the adoption. Whether his opposition will succeed depends on his relationship with the child. If he lived with the mother and helped raise the child, he has a greater chance of succeeding than if he neither visited nor supported the child. If the child to be adopted is a newborn (and thus the unwed father has had no opportunity to create a relationship with the child), 20 states allow the father to prevent the adoption and obtain custody. In some of the remaining states, the father has no right to prevent the adoption; other states decide the question case-by-case.
An unmarried woman who becomes pregnant is often referred to as an unwed mother. Unwed mothers have virtually all the same rights as do married women who become pregnant - they cannot be denied the right to have an abortion; they cannot be required to obtain the father's consent before having an abortion and they may raise the child or place the child up for adoption. An unwed mother who is under the age of consent, however, may be required to notify, or obtain the consent of, her parents or a court before having an abortion.
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