California law considers couples in an intimate relationship who live together without the benefit of marriage as cohabitating. While cohabitation was rare in the last century, the most recent census reveals that cohabitation between individuals between ages 18-24 is more common than marriage. Cohabitating couples often build financial interdependence but don’t enjoy the same protections as a couple who are legally wed — especially during separation.
Further, unlike some states, California does not recognize common-law marriage or ascribe marital privileges to couples who cohabitate together for a specified number of years. However, cohabitating couples do have some legal rights when they decide to separate.
In some cases, a person may wish to prove an ex-spouse enjoys cohabitation with another in order to gain a modification of a previous agreement for spousal support. California courts may consider an ex’s cohabitation as a “change in circumstances” that qualifies as a means to revisit a spousal support order.
How California Determines Cohabitation
Despite the lack of common law marriage status in California, long-term cohabitating couples can expect certain rights in the division of their property when they separate, but first, they must be able to establish their status as a cohabitating couple through evidence in court. Evidence of financial interdependence includes the following:
- Using the same mailing address for a number of years
- Mutual financial contributions to the household expenses
- Financially contributing to each other’s support
- Owning real estate jointly or renovating a property together
- Jointly purchasing cars and other personal property
The above evidence may also be used by an ex-spouse seeking to prove cohabitation as a change in circumstances of their ex-partner in order to seek a modification or termination of an existing spousal support order. Cohabitation alone is not enough grounds for an automatic reduction of an order for spousal support. A court must review the evidence and hear any rebuttal before determining if a modification or termination of the existing order is due.
What Rights Do I Have as a Cohabitating Partner in California?
Cohabitating partners are not the same as a domestic partnership — which requires a formal declaration of domestic partnership form with notarized signatures submitted along with a filing fee to the California Secretary of State’s Office. Cohabitation is an informal arrangement between intimate partners. The state considers the property of each individual in a cohabitating relationship as separate.
If you have investments, property, and bank accounts in your name, you retain them during a breakup regardless of how long you lived with a partner. Only assets specifically owned as joint property are subject to equal division during a separation. Assets gathered independently during the time of cohabitation are not community property and aren’t subject to division. Just as unmarried individuals cannot file taxes jointly, they are not subject to California’s community property division law during a separation.
What is a Cohabitation Agreement?
When romantic partners decide to cohabitate without marriage, each can protect their rights by signing a cohabitation agreement. This functions in a manner similar to a prenuptial agreement in that it specifies what will happen to property in the event of a breakup. Before gay marriages were legalized in 2008, many gay couples used cohabitation agreements to formalize a romantic relationship. Today, many straight and gay couples choose this flexible option in order to clearly define a relationship without marriage. A cohabitation agreement may include the following terms:
- Division of income and expenses during cohabitation
- Whether acquired property will be considered joint or separate property
- Plans for sharing assets and pensions
- Whether or not you plan to have children and what steps you may take to make both parties the legal parents
- Division of childcare responsibilities
- Division of property and who gets to keep the home in the event of a future separation
- Whether or not one partner will be entitled to financial support after a breakup if he/she sacrifices education and/or career opportunities to raise children
An experienced Los Angeles family lawyer can help define the terms of a cohabitation agreement between couples before they become cohabitation partners or at any time during their relationship.
Cohabitation With Children
While cohabitating couples don’t have the right to petition for spousal support during a breakup, if they have children together, the courts always consider the best interests of the children, which means parents may petition for shared custody and child support. Unlike married couples, an unmarried father must establish paternity through the courts before petitioning for shared custody or visitation rights.