Cohabitation refers to a couple in a romantic relationship living together without being married. While cohabitation is now more common than marriage in younger couples, many people do not realize the potential risks involved. Cohabiting couples do not have the same legal protections as married couples under California law.
Cohabitation vs. Domestic Partnership
Cohabitation is not the same thing as a common-law marriage or domestic partnership. California does not recognize common-law marriages, or legal marriages between two people who have lived together for a long time (generally 10 years or more). Regardless of how long a couple has cohabited, they will not be viewed as married in the eyes of California law without an official union.
Cohabitation is also different from a domestic partnership. A domestic partnership is officially recognized in California and provides certain legal rights and protections to the couple. While a domestic partnership is not the same as marriage, the couple will be protected by many of the same laws. This includes certain tax benefits, legal rights to children, inheritance rights and family leave if a partner is in need.
Issues a Cohabiting Couple Might Face Upon Separation
California does not have any specific cohabitation laws. There are no specific regulations in place for dividing the property of a cohabiting couple after a separation. The courts will not intervene to divide the property down the middle as they would for a married couple in a divorce case. A cohabiting couple in a romantic relationship will retain individual property rights. This can create issues when trying to divide shared property after separation.
For example, many cohabiting couples commingle or blend their finances, such as by opening a joint bank account. After a breakup, each party may need to work with an attorney who has experience in cohabitation cases to protect their individual property rights. In general, any assets, bank accounts, property or investments in one person’s name will be kept by that person. Only assets viewed as joint property will be subject to division when a cohabitation ends.
Another issue that a cohabiting couple may need to deal with is child custody. Unlike property division, the California courts deal with a child custody matter the same way for a cohabiting couple as a married couple. Both parents will have equal rights regarding custody and visitation of their shared children. If the couple cannot come to a custody arrangement on their own, it will be determined by a judge based on the best interests of the child.
How to Protect Yourself During Cohabitation
Since there are not many laws in California protecting cohabiting couples, you may need to take your future into your own hands. Work with an attorney to create a legally enforceable cohabitation agreement with your spouse. Similar to a prenuptial agreement, this legal document can determine how you and your partner will divide property and deal with other matters in the event of a split. It can protect you from losing property or assets to your spouse in a separation.
A cohabitation agreement may touch on issues such as shared finances, budgetary concerns, real property, valuables or collectibles, jointly owned vehicles, investments, retirement plans, an estate plan, power of attorney, guardianship determinations, and custody of a shared pet (though not children). Having these issues worked out in writing can protect you more than only having a verbal contract with your spouse. Written agreements are more easily enforceable.
For more information about cohabitation laws in California or to discuss creating a cohabitation agreement with your partner, contact a San Diego divorce attorney from Boyd Law for a free initial consultation.