“Aren’t we married under common law?”
Daniel Gold • August 21, 2024
In California, THERE IS NO
“COMMON
LAW MARRIAGE”! There I got that out of the way.
I meet many people who have been in long-term relationships, and live together, but have opted, for a variety of reasons not to get married. Many, if not all, have come to believe that if they cohabit long enough, they will have a common law marriage. They are slightly misinformed.
My answer/statement above, is admittedly, a bit simplistic. It is true that some states do recognize
“common
law” marriage. It is also true that California will recognize the validity of common law marriages if they
“are
valid under the law of the jurisdiction
(state
or country) where contracted”. For example, if you have a
“common
law” marriage in Iowa
(which
allows residents to be considered
“married”
after a certain time), California will recognize it.
In California, we use the term
“cohabitation”
fka
“living
in sin”.
Cohabitation is becoming increasingly common.
M
any cohabitating couples
, as my example above notes,
are unaware of the legal implications of their living arrangements. Understanding cohabitation issues is crucial to protect your rights and interests.
What is Cohabitation?
Cohabitation in its current vernacular refers to a couple living together in a long-term relationship that resembles a marriage , but without the formalities of a legal marriage. While cohabitation can offer flexibility and convenience, it also presents unique legal challenges, especially when it comes to property, finances, and custody issues.
Legal Implications of Cohabitation
Unlike married couples, cohabitating partners do not have the same legal rights and protections under California law. Here are some key areas where cohabitation and marriage differ:
Property Rights
In California, community property laws apply to married couples, meaning that property acquired during the marriage is considered jointly owned. However, for cohabitating couples, each partner retains ownership of property acquired individually unless there is a
n
agreement stating otherwise.
Financial Responsibilities
Cohabitating partners are not legally obligated to support each other financially, unlike spouses. This means that in the event of a breakup, there is no legal requirement for one partner to provide financial support to the other, unless there is an agreement in place.
That agreement must demonstrate the parties had some sort of understanding that they were
“pooling”
resources and chose to live together as a direct reliance on that agreement. These have been referred to commonly as
“Marvin”
rights in reference to a famous California Supreme Court case in this area.
Custody and Child Support
If cohabitating partners have children, they have the same parental rights and responsibilities as married parents. Both parents are obligated to support their children, and custody and visitation arrangements are determined based on the child's best interests.
Some of that will be covered in a subsequent post.
Creating a Cohabitation Agreement
To protect your rights and clarify financial and property arrangements, you should consider creating and executing a cohabitation agreement before the moving truck shows up. This legal document outlines each partner's rights and responsibilities, similar to a prenuptial agreement for married couples. It also firmly declares, if the parties wish, that neither
party will have “Marvin” rights
Key Components of a Cohabitation Agreement
- Property Division : Specify how property and assets will be divided in the event of a breakup.
- Financial Contributions : Outline each partner's financial responsibilities, including rent, mortgage, utilities, and other expenses.
- Debt Management : Detail how debts will be managed and who will be responsible for specific debts.
- Support Agreements : Include provisions for financial support if one partner is financially dependent on the other and/or confirm neither party has or will have financial obligations to the other if the relationship ends.
- Custody and Support : If you have children, outline custody and support arrangements to ensure the child's best interests are prioritized.
Steps to Take if You’re Cohabiting
- Consult a Lawyer : Working with a family law attorney can help you understand your rights and ensure that your cohabitation agreement is legally sound and enforceable.
- Document Your Agreement : Put your cohabitation agreement in writing and ensure both parties sign it. Keep copies for your records.
- Update Your Agreement : As your relationship and circumstances change, update your cohabitation agreement to reflect new realities.
- Consider Estate Planning : Cohabitating couples should also consider estate planning to ensure that their wishes are respected in the event of death or incapacity.
Conclusion
Understanding the legal implications of cohabitation and creating a cohabitation agreement can provide clarity and protection for both partners. If you’re living with your partner and want to safeguard your rights and interests, contact me for personalized advice and assistance.
Call:
949-756-0684
Email:
dgold@tldlaw.com
Disclaimer
This information outlines a few of the concepts that surround cohabitation issues in the State of California. It is not intended to be, nor should it be construed as legal advice for any particular situation. Please seek advice from TLD Law or your personal attorney in your state or jurisdiction.
TLD Law Family Law Partner Daniel R. Gold was recently featured on the Divorce Mortgage Strategies Podcast , powered by the Divorce Lending Association . In the episode, titled “ The Divorce Quarterback: Leading the Team That Guides Clients Through Divorce ,” Dan joins host Amy Valdivia, CDLP®, to discuss the importance of coordination and strategy in complex divorce matters. The conversation explores how successful outcomes often require collaboration among family law attorneys, mortgage professionals, and financial experts—particularly in cases involving substantial assets, real property, retirement accounts, and long-term support considerations. Dan shares insight from decades of experience guiding clients through high-net-worth and gray divorces. He explains why approaching divorce as a team effort—where the attorney serves as a strategic leader coordinating financial, lending, and legal professionals—can help clients make informed, sustainable decisions during one of life’s most significant transitions. Watch the full interview on YouTube: https://www.youtube.com/watch?v=Mx7ruqT_IiU About Daniel R. Gold Daniel R. Gold is a partner at TLD Law and a California State Bar–certified Family Law Specialist. His practice focuses on complex divorce and family law matters, including high-net-worth divorces, division of business interests and real property, retirement asset division, and long-term support issues. Known for his strategic and detail-oriented approach, Dan works closely with clients to provide clarity and steady guidance through financially and emotionally complex situations. Learn more about Daniel R. Gold: https://tldlaw.com/our-people/daniel-gold/ About the Divorce Mortgage Strategies Podcast and the Divorce Lending Association The Divorce Mortgage Strategies Podcast is produced by the Divorce Lending Association and is designed for family law professionals, financial specialists, and individuals navigating divorce. The podcast focuses on promoting divorce literacy, financial clarity, and cross-professional collaboration to support better outcomes in divorce cases. Learn more about the podcast: https://www.divorcelendingassociation.com/reports/divorce-literacy-podcast.cfm Visit the Divorce Lending Association: https://www.divorcelendingassociation.com/
Daniel R. Gold, Certified Family Law Specialist, is proud to announce the release of his debut book, The Divorce Quarterback: A Lawyer’s Roadmap Through the California Family Law Jungle .
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