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Cohabitation: Background and Trends

Cohabitation is when two adult intimate partners live together, but aren’t married. Cohabitating couples can be opposite-sex or same-sex, but if same-sex marriage isn’t legal in the state where a same-sex couple lives, cohabitation may be their only option. The law hasn’t traditionally looked favorably upon individuals living together outside marriage. Religion has, and in many cases continues, to disapprove of living together outside of marriage, hence the common term for it "living in sin.” Law and religion were historically closely connected.

However, the law in the area of cohabitation has changed considerably in the past 40 years. Cohabitation has also increased dramatically during this time. In 1970, about 530,000 unmarried couples reportedly lived together in the United States. By 1990, this number increased to 3.2 million. In 1995, 7% of women age 15 to 44 were cohabitating and half of them didn't think they would get married. This research contradicts the belief that some individuals live together as a trial period before marriage.

By 2000, 5.5 million couples were living together; about 4.9 million were cohabitating opposite-sex couples. About 40% of the cohabitating couples in 2000 had children. The cohabitation trend may still be on the rise.

Legal Pros and Cons of Cohabitation

In some respects, unmarried cohabitation today can be beneficial from a legal standpoint. Unmarried partners may define the terms of their relationship without being bound by marriage laws that can restrict the marriage relationship. When a relationship ends, unmarried cohabitants don’t need to follow strict procedures to dissolve the living arrangement. Moreover, unmarried couples can avoid the so-called "marriage tax" in the Internal Revenue Code that provides a greater tax rate for unmarried couples than it does for two unmarried individuals. Although, some are trying to eliminate this penalty.

On the other hand, unmarried cohabitants don't enjoy the same rights as married individuals, particularly with respect to property acquired during a relationship. Marital property laws don’t apply to unmarried couples, even in long-term relationships. Moreover, laws regarding distribution of property of one spouse to another at death don’t apply to unmarried couples.

Children of Cohabitating Parents

Traditionally, children of unmarried couples were considered "illegitimate" and weren’t afforded the same legal rights as children of married couples. However, these laws have changed because in the late 1960s and early 1970s the Supreme Court found that treating illegitimate children differently violated the 14th Amendment Equal Protection Clause of the Constitution.

Some research has shown that children of cohabitating parents are at higher risk of poorer outcomes than children of married parents because they have fewer resources and the living situations can be unstable. The average cohabitating partnership lasts two years, with about half ending due to marriage.

Cohabitation Contracts

A fairly recent trend among both opposite-sex and same-sex couples who live together is to enter into contracts that provide rights to both parties that are similar to rights enjoyed by married couples. In fact, many family law experts now recommend that unmarried cohabitants enter into such arrangements. Further changes in the laws may also afford greater rights to unmarried partners who live together. However, such arrangements may be invalid in some states, particularly where the contract is based on the sexual relationship of the parties. To learn more, read FindLaw’s article on the validity of these cohabitation contracts.

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