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Together but Seperate : Cohabitating in Virginia

| August 09, 2018
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Together but Seperate : Cohabitating in Virginia

More than ever, unwed couples are making the decision to move in together. On its face, cohabitation looks like a simpler, less encumbered lifestyle for those who wish to avoid the formalities of marriage and future legal consequences should the relationship sour. Cohabitation may seem simple, but appearances can be deceiving. Here are the Top 3 things you should know about Cohabitation:

Common Law Marriage does not exist in Virginia.

Working in family law, I would occasionally get a call from someone wanting support from their former partner with whom they had hit that 7-year benchmark. Consider the following:

 

A and B are breaking up after 9 years of living together. A wants support from B as he financially supported B throughout medical school and B’s income is twice as much as A’s. Is this realistic?

 

Unfortunately, no. The cohabitating couple may have been together long-term, but the Commonwealth does not recognize common law as a legal status. While a spouse automatically receives legal rights and protections upon entering into a legal marriage, these rights and protections do not exist for cohabitating partners.

 

  • Property and asset protection are high conflict areas for cohabitating couples.

Even if your relationship is more casual and resembles that of two roommates that are dating, you should have an agreement to define each partner’s roles and responsibilities. Will you be sharing the rent/mortgage payments equally? What about utilities? Will you share chores? What if you purchased big ticket items together during the course of cohabitation? What if titles are in one person’s name, but the other has contributed their income to take care of the debt? Have either of you paid for improvements on the home that increased its value? What if you buy a dog together? These are simple issues that may not initially occur to casual couples, but future discomfort can be avoided by having the discussion in the beginning and entering into a Cohabitation Agreement, or contract that will clearly define and protect that which is most important to each partner.

 

Long-term couples should also plan for the future regarding their estates and assets. Consider the following:

 

A and B have lived together for 20 years in the same home, owned outright by A. WhenA dies unexpectedly without a will, the home goes to the A’s estranged son and he asks B to leave. Could this have been avoided?

 

Absolutely. There are several ways to ensure your partner is protected in this situation. The simplest way the couple could have prevented the above would have been by creating Joint Tenancy in the home with the right of survivorship. B would have become the sole owner of the home immediately upon A’s death.

 

Planning for the unexpected segues nicely into the final point:

 

  • You cannot make decisions for, or on behalf of your partner without establishing a legal relationship
    This is big issue to highlight in the rights and protections afforded to spouses that do not automatically exist for cohabitating partners. Consider the following:

 

A and B have cohabitated blissfully for 15 years. During an elective surgery, A experiences complications and requires emergency life-saving measures. B has no right to speak for or make decisions on behalf of his partner and the hospital is attempting to locate A’s next of kin. Could this have been avoided?

Yes, but it is important to understand that careful planning is required to form the legal relationships that will give your partner the authority to act on your behalf and for your benefit. Giving your partner Durable Power of Attorney or making him/her the trustee over your accounts should you become incapacitated are just two examples of how you can create legal relationships.

This is an intensely abbreviated overview of cohabitation and how to protect yourself and your partner. My goal is simply for you to understand that this relationship is more complex than you may have thought. Have the discussion with your partner, make a plan and go forward confident that you are fully informed and prepared for whatever may come.

This information is not intended to be a substitute for individualized legal advice. Please consult your legal advisor regarding your specific situation.

Meredith Maust, Esq. is not affiliated or endorsed by LPL Financial or Lions Bridge Financial Advisors.

 

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