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Changing laws and attitudes on cohabitation: 3 things to note

Californians are used to being ahead of the curve. An indirect reminder of this came last week, when Florida finally repealed a law that had made cohabitation by an unmarried couple a crime.

In California, living together outside of marriage has long been treated much differently than that. Nearly 40 years ago, in a celebrated case called Marvin v. Marvin, the California Supreme Court held that contractual agreements between parties who are living together outside of marriage are generally enforceable.

The court did add a caveat: that the consideration may not be "meretricious." In other words, the contract can include a sexual relationship, though it can't be a contract solely for sexual services.

The implications of changing laws and attitudes on cohabitation remain far-reaching. In this post, we will take note of three of them.

Cohabitation continues to gain social acceptance.

Social acceptance of cohabitation has been increasing for decades. Statistical surveys have shown that a remarkably high percentage of people live with romantic partner at some point in their lives. Acceptance of such arrangements has increased accordingly.

Last week's news of Pope Francis's proclamation on nontraditional relationships is an interesting example of this broader trend. In his encyclical "Amoris Laetitia" ("Joy of Love"), the pope encouraged a more welcoming attitude to unmarried couples, as well as to same-sex couples and people who have been divorced.

In a recent survey by the highly respected Pew Research organization, 44 percent of Catholics said they had lived with a partner without getting married, at least for a period of time. Nine percent, or nearly 1 in 10, said they were doing so currently.

To be sure, Catholics are only one demographic subset of the larger U.S. population. But the trend toward more cohabitation and more acceptance of cohabitation is undeniable.

With same-sex marriage now legal, cohabitation may become less common for same-sex couples.

It wasn't until June 2014 that the U.S. Supreme Court finally legalized same-sex marriage nationwide.

Prior to that decision, California's law on same-sex relationships had been the subject of ongoing legal controversy for many years. With marriage not an option, many same-sex couples cohabitated. This was the case despite California's domestic partnership law, which provides for a different form of legal recognition for a relationship.

Now that same-sex marriage is fully legal, however, cohabitation among same-sex couples may become less common. This may happen even as social acceptance of cohabitation continues to increase.

Crafting an effective cohabitation agreement must be done with care.

There are a host of issues that can be addressed in a cohabitation agreement. This can begin with who pays for what and who owns which property.

For long-term relationships, issues of estate planning come into play as well. This is necessary in order to avoid a situation where a long-time unmarried partner could receive nothing if the other partner dies.

The question of whether there is a duty of ongoing support if the relationship ends is also important. It is worth recalling, in this regard, that Michelle Marvin, the woman who brought the Marvin case, did not end up receiving the support award she sought.

The case became very fact-specific. But the courts eventually ruled that Michelle Marvin and the famous movie actor she lived with, Lee Marvin, did not have an agreement about ongoing support or about property division.

In short, cohabitation agreements must be crafted with care to be enforceable.

Doing what's best for your situation

Technically, nonmarital cohabitation agreements in California don't have to be in writing. As with other contracts, in theory they can be oral.

As the Marvin case showed, however, the courts are strict about requiring evidence of an agreement. In practical terms, this means courts expect cohabitation agreements to be written in order to be enforceable.

That is why, if you are living with someone outside of marriage and financial reliance is involved, it makes sense to talk with a knowledgeable family law attorney.

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