What is Cohabitation?
A regular question we receive per our online chat is the meaning of cohabitation. Cohabitation is defined as a prolonged period during which two people who are not married to each other live together in a long-term relationship that resembles a marriage. In Connecticut there is no specific period of time in which cohabitation must occur to be considered as such.
In the context of Connecticut family law, cohabitation most often comes up during a post-judgment matter, typically in a motion for modification or a contempt motion due to an alleged violation of the existing court order , usually related to alimony. In this scenario, the term cohabitation means to live together on a continuing basis in a romantic relationship, similar to a marriage, with or without sexual cohabitation.
Certain other facts may indicate that cohabitation is present. The following are examples of typical characteristics which may be present during cohabitation: Although these are common indicators of cohabitation, there is no definitive checklist to determine whether or not cohabitation is present. Cohabitation is determined on a case-by-case basis.
Connecticut Cohabitation Agreements
Cohabitation is a relatively recent trend affecting many states, including Connecticut. People are living together without the benefit of marriage. Unmarried couples may live together for a variety of reasons. Perhaps they are waiting until later in life to marry, or maybe they have financial or religious reasons to avoid legal marriage.
While couples of the past would have lived together "at their own risk," these days cohabiting couples need to make provisions to ensure their rights and obligations in the event of a purchase, sale or lease of real estate or perhaps a separation, breakup or death. To do this correctly, adopting a cohabitation agreement is recommended. This document can protect you legally and financially in a variety of ways.
Some essential components of cohabitation agreements can include the following:
A cohabitation agreement is important because it not only provides the necessary protection for the couple, preventing future costly litigation, but it also contributes to harmony within the family unit. Once the parents are satisfied that their child is protected in the event of a breakup, or perhaps bequeathed his or her share in the event of death, they will no longer need to worry about such issues.
A written agreement is important as it will be followed rather than the often uncertain "rules" that apply to unmarried people living together. It is not the fault of the courts that no rules exist; rather the law has been so slow to evolve with society that there are often no clear answers or set rules that apply to unmarried couples. This is one reason cohabitation agreements should be executed.
Any Connecticut person that lives with someone of the opposite sex in the nature of a marriage is in a common law marriage, even if such a relationship is acknowledged by neither party.
While Connecticut does not recognize the common law rules of marriage, it does enforce contracts between parties to a relationship. Cohabitation agreements are contracts. Therefore the sharing of finances, assets and property acquired during the relationship is subject to contract law. If you and your partner have co-mingled your funds, whether intentionally or not, this may complicate your case.
Cohabiting Couples Rights Under Connecticut Law
Couples that cohabitate do not have the same rights as married couples. There is no right to spousal support or alimony. There is no presumption that property accumulated during the relationship belonged to both parties. Importantly, there is no right to receive benefits provided to spouses by various state and federal statutes, like Social Security, workers compensation, retirement funds and group insurance. Some of the rights the courts have afforded to cohabitating couples come from case law when one party is able to establish that the other owes that person a legal duty. Some of those duties have included: Common law contracts Common law palimony claims
When cohabitating couples separate they may make claims for palimony on the basis that their relationship is the modern day substitute for marriage. The court must consider the following factors when determining whether to recognize a right to recover: ordinarily speaking, without that relationship, cohabitating partners have no rights in the property of the other identifiable spouse unless the parties hold the property in some form of joint ownership or have declared the property to be joint. While cohabitating couples in Connecticut do not enjoy the plethora of legal protections given to married couples, the legislature has included some cohabitating couples within the meaning of "the family" for the purposes of various statutes. For example, Connecticut General Statutes 36a-626 provides for the benefit of any family member an estate and/or trust assets shall be distributed without being subject to the claims of any third party, except as provided in chapter 802c…. "Family member" means the … domestic partner, … or cohabitant of the family member.
How Cohabitation Affects Alimony in CT
In Connecticut, the issue of what impacts cohabitation of a alimony paying party may or can have upon of the other party’s right to have alimony payments continued, reduced, suspended or terminated is likely to become an issue in many cases. While Connecticut statute does specifically provide that cohabitation may be a basis for evaluating a financial order, there may still be difficulties with finding all of the right language in order to have a Court terminate the alimony as a result of the cohabitation.
In Connecticut, a spouse’s right to alimony terminates only upon the death of the payor spouse, the payee’s remarriage, or a material change in circumstances. The issue of cohabitation arises in connection with a claim of change of circumstances when the payor or obligor spouse has been made aware of the payee spouse’s cohabitation with another person and moves the court to reduce support payments because of such cohabitation in order that the payee and the person with whom she purportedly cohabits can better meet their separate needs and expenses.
One of the things that the family court must consider is whether or not the relationship rises to the level of a marriage. Some of the things that the court considers are whether or not the spouses have merged their affairs, whether the wife uses the husband’s name; whether they have marital or religious ceremony which provides evidence of their intent to live together indefinitely in the manner of husband and wife, or hold themselves out as a married couple .
Other issues that are considered by the court are the length of the relationship, the parties’ sexual relationship, whether they have a common residence and/or common bank accounts, real estate holdings, telephone listings, vehicles, and insurance policies. Similarly, the court will look to the degree of joint finances and the extent of the parties’ mutual reliance upon each other.
A payor is entitled to a modification of his child support obligation if the payee has moved in with a significant other and this move negatively impacts the payor’s income. An obligor spouse is entitled to modification of his alimony award if he can demonstrate that the payee has substantially increased her financial resources and improved her standard of living with respect to his standards as evidenced by the payee’s lifestyle prior to the modification. In other words, the payor does not simply get a modification because the payee has a second job or even if the payee earns more now than she did during the marriage. In order to warrant a modification in alimony, the payor must show that the payee has substantially improved her financial or economic status and that substantial improvement is dependent on the cohabitation with another.
The mere fact that the alimony payee is cohabitating with another person however, does not divest the alimony recipient of his or her right to continue receiving alimony. A recipient spouse may not have his or her alimony payments impacted by virtue of cohabitating with another person unless it can be demonstrated that the economic and/or financial resources of the alimony recipient are improved to a substantial degree as a result of the cohabitation with a person possessing sufficient economic resources.
Recent CT Case Laws and Precedents
Cohabitation as a factor in family law disputes has engendered a robust body of case law in Connecticut. A rich history follows the treatment of the issue and continues to inform today’s jurisprudence. Cohabitation is no different than other post-judgment considerations, in that shifts occur at both legislative and judicial levels. Non-exclusive of shifts in public perception, the enactment of Conn. Gen. Stat. ยง 46b-86(c) was heralded as a "game changer" in the rupture of the traditional ongoing support obligation on divorce when the payee cohabitated with another person, thereby terminating the alimony obligation. Connecticut’s practice of determining the lifestyle of or alimony in accordance with The American Academy of Matrimonial Lawyers, "Standards of Practice for Lawyers Representing Family Law Clients" continues to influence the practice of professionalization in the family law arena. With the professionalization lens, the issue of cohabitation is consistently weighed against experience in its evolution. Cases reach appellate review more quickly than in non-family law cases, not only because the parties often agree to waive the right to appeal (to further avoid expense), but because the issue is so central to every party’s focus, and is typically one which will not settle if the parties can’t reach common ground on their differing views. Appellate review includes the consideration of new factors as well as a review of the fact-finder’s exercise of discretion in the current state of the law. Our courts can exercise discretion and wisdom as they observe the situation in its totality. A few of these decisions are referenced here, by way of example. "Cohabitation" generally is defined in cases as meaning "living together in a continuing romantic relationship that resembles a marriage." In Peter v. proch, 154 Conn. App. 138 (2014), the court reiterated the factors to be considered when assessing a cohabiting situation: 1) the duration of the relationship; 2) whether the couple shares expenses; 3) whether the couple holds themselves out to others as being a couple; 4) whether they take trips with one another; 5) whether they own real property in both their names; 6) whether they share responsibility for children; 7) whether they have a sexual relationship. Connecticut law places no minimum threshold as to the length of a cohabiting relationship before it can be used as a basis to terminate alimony. However, in Bouquillon v. Bouquillon, 149 Conn. App. 350 (2013), the length of the relationship which the appellate court held to be necessary to support termination was "far shorter than other decisions…". Id. at 356. The non-objective Myers-Briggs analysis allowed the court to determine the couple’s behavior and dynamic to determine the familial relationship. Even though Alva and Hayat had similar living arrangements with their respective dates, the court considered the whole picture by examining the "crucial factors of interdependence and permanence" when determining the serious relationship. Alva was a trained chef who started her culinary career tending to Hayat. Before they met, she was a self-sufficient person who supported herself and her two children. Now, she had a "new identity" as Hayat’s consort. She worked for him at his restaurant, had turned the basement into a "mini nursery" for him, and accompanying him out of state for his medical appointments. The stuff of earlier case law was fading, and the court appeared to be moving into a more modern interpretation of cohabitation. In Pinsky v. Pinsky, 60 Conn. Supp. 235 (2001), the court wrote: "There are many aspects of a marriage that could be termed ‘support.’ A spouse is expected to support another, to hold the other up along life’s road, to give of a portion of one’s self to the other. This can be done and often is done, in many way other than by providing direct economic support for the basic necessities of life…. To likely include the provision of child care or baby-sitting services, financial advice, the maintenance of schedules, the lending of vehicular transportation, etc…" The cohabitation statute is broad in its applicability, extending to situations which are far less in nature than marriage. As the standard of living of cohabitating couples closely resembles that of the standard of living of married couples, the application of the cohabitation statute, in the context of alimony, is now in the realm of the presumptively necessary.
Useful Advice For Cohabiting Couples
If you’re considering an unmarried life together, you can either do nothing and see how it plays out, or you can take some proactive steps to protect yourself and one another. Here are some practical tips:
Get Informed: Read what the law in your state is with respect to unmarried couples. My own preference is to start here (see my blog post on same). Research the specific issues you may have personally, i.e., whether you have kids or may want to have kids in the future, do you have a business, do you have significant separate property, etc. Knowledge is power.
Get Legal Advice: Consult with an experienced family law attorney to understand the laws in your state and options that are best suited to you and your circumstances. Their services may look like a luxury to an unmarried couple, but a good attorney is your best insurance in the event of a crisis.
Put Important Agreements in Writing: If you live together, but never marry, a written cohabitation agreement is nevertheless a good idea. Encourage your partner to engage in this process with you. It may answer important financial questions you are both reluctant to raise . It will also save you a great deal of uncertainty and heartache if your relationship unexpectedly ends. And, it will offer you both peace of mind that you are serious enough about your relationship that you talk the hard stuff out. It may even facilitate a discussion about marriage, if appropriate. An attorney can help you draft the document based on your personal needs and circumstances, but should not be used to negotiate on behalf of one person or the other. Use that person to create the document, but get your own advice to ensure you are protected. Also, if you end up getting married one day, an effective cohabitation agreement can form the basis of a prenuptial agreement.
Put Estate Planning in Place: Typically, a couple’s estate plan consists of a basic will, a basic durable power of attorney and a basic healthcare proxy. A couple that remains unmarried should still have these documents, and ideally should have additional lifetime planning documents because of the lack of legal protections for unmarried people under a variety of circumstances.