The Perils of Playing House

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We are all aware that couples are not rushing into marriage at a young age—or even sometimes at a “middle” age—as was customary years ago. It is fairly common these days for couples to live together for years and even raise children together without availing themselves of the formal framework of marriage. As Joni Mitchell warbled years ago, they may feel, they “don’t need a piece of paper from the City Hall, keeping us tied and true.” The phenomenon of skipping marriage is well-accepted these days, so there is none of the old-fashioned “shame” to worry about, either.

But every union, no matter how close, will end eventually, either in divorce or in death. And couples are discovering that, without legal marriage, a lot of things can go wrong that are hard to remediate. As a result, the Joint Editorial Board for Uniform Family Law has just released a draft for discussion on a proposal for a model “Uniform Cohabitants’ Economic Remedies Act” that, if adopted by a state, would provide a new legal framework to help unmarried couples.

The old framework for what were called “common law marriages” still exists in some states, including Texas. The alternative of !ling a Declaration and Registration of Informal Marriage to formalize this situation is surprisingly simple. (See Texas Family Code Section 2.402.) A couple trying to establish the common-law marriage nature of their relationship must hold themselves out to be married. In fact, if they later decide to get married and tell all their friends and relatives they are finally “getting married,” they maybe unwittingly providing evidence that undermines their common-law marital status claim.

The draft Uniform Law proposal attempts to be much more comprehensive but begs the question on almost every page: if you want all the benefits and safeguards of marriage, why don’t you just get married! It seems ironic that gay Americans fought so hard for the right to all the benefits of the institution of marriage, and now there is actually a proposal to provide many of the same benefits to unmarried couples without even requiring a written agreement of any kind.

Ever since the notorious Marvin v. Marvin case of 1976, (remember the term “palimony”?) in which the California Supreme Court held that unmarried cohabitants could enter into enforceable contracts to share earnings or property or for support, some states have tried to provide some form of assistance to individuals in long-term relationships without, as they used to say, “benefit of clergy.” But the legal landscape varies widely across the country.

Who would be eligible to benefit from a uniform code covering unmarried cohabitants? The cohabitant must have reached the age of majority or must have been emancipated. The couple cannot be relatives so closely related that a sexual relationship would be considered incest. Nor would this new law apply to mere roommates or to any group larger than two individuals.

The relationship may involve sex, but sex may not be an essential or required part of the relationship because the relationship could then be considered a form of prostitution. According to the new proposal, cohabitants eligible for a remedy under this new law might even still be legally married to someone else!

The couple may have made an agreement of some sort, possibly only an oral agreement, that one party will support the other in return for a variety of domestic services— which sounds more like an employer/housekeeper relationship. The required “contributions to the relationship” may also include business development, business entertaining and the like, activities through which one partner is helping to advance the other partner’s career.

Consider for a moment all the difficulties that may occur when two people have a lengthy marriage-like relationship without getting married. If they have children and then separate, the law already provides a remedy for that situation. A paternity suit enables one party to require the other to acknowledge the child and pay child support.

Financial issues quickly become far more difficulties . What if, just for one example, one party owns the house the couple lives in, and the other party has helped make the mortgage payments for years? If they split up, the party who does not own the house has a very complicated and expensive path ahead to seek a remedy for all those years of mortgage payments and now … no place to live, either. When a couple purchases a home together and then later marries (and divorces), tracing proportional ownership can also be complex and expensive.

A cohabitant has no legal right to the partner’s 401(k) account or pension. If one party dies, the other party has no right to the other party’s Social Security survivor’s benefits.

When two people are married, any money earned and property acquired while they are married that is not clearly separate becomes part of community property. Unless certain properties or income—or an interest in the house, for instance—are plainly gifted or designated to an unmarried cohabitant partner in approved legal form, the partner who does not own the 401(k) or the house gets nothing.

Other difficulties may result when a couple lives together without marrying—the same kinds of problems that gay couples often faced before marriage was available to them. If one partner is in the hospital but there is no explicit, signed directive for health care, the other partner may not be able to make health care decisions for the one who is ill or possibly even be allowed to visit the other party. It’s easy to imagine situations in which family members—parents or grown children—who don’t approve of the relationship could shut the cohabitant out completely.

This is precisely the kind of situation the new proposed law is intended to remedy. But its many contortions may lead couples into a murky wilderness. The best remedy, already available, is for each partner to educate himself or herself about the consequences of maintaining a committed relationship without marrying. Conflict occurs when expectations are not met. Expectations not shared with a partner, in order to seek an understanding, guarantee Conflict.

At the very least, a couple may want to safeguard each other’s interests with a written document establishing how they will share—or not share–their assets in a way that is beneficial and fair to both. Texas family lawyers have templates available to them for cohabitation agreements, but, in almost 40 years in practice, this author has never been called upon to draft one. Nevertheless, it is a tool that can prevent future problems.

Love is wonderful but, as President Ronald Reagan once said to Premier Mikhail Gorbachev, it’s !ne to trust but important also to verify.

Susan Myres is a board-certified family law attorney at Myres & Associates. She has been practicing in Houston for over 35 years and has served in leadership positions locally, statewide and nationally. She is also the immediate past president of the American Academy of Matrimonial Lawyers.

Reprinted with permission from the June 30, 2021 edition of the Texas Lawyer © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com877-257-3382 -