1) Understand cohabitation and differentiate from common law marriage
2) Identify situations where a cohabitation agreement might be helpful to you
Is Cohabitation Legal or Illegal in Florida in 2020?
Cohabitation, whether due to quarantine, alternative to marriage, or for any other reason is currently 100% legal in Florida. It is important to understand what cohabitation is so you will understand the legal rights and responsibilities that might go along with it, and so you can evaluate whether a formalized cohabitation agreement, drafted by a competent, legally trained family mediator might be beneficial to you.
What is Cohabitation?
It means living together.
Cohabitation is a descriptive term describing two or more people residing together, regardless of whether its in a romantic way that resembles marriage. Under Florida law, cohabitation is not a legal term like “marriage” or “divorce”, so it doesn’t automatically have any legal effects. Your home and property do not become shared and you do not share each other’s bills or credit card expenses. However, it is an important detail that might lead to the creation of marriage-like rights and legal entitlements, some of which may have been intended and others unintended.
Cohabitation and Alimony
One common situation where cohabitation becomes relevant is when an ex-spouse is paying alimony and the alimony recipient moves in with someone else. If the recipient is now in a financially and emotionally supportive relationship that starts to look like marriage, the fact that they are cohabitating is a detail that strengthens the argument that paying alimony is no longer necessary. The argument is, “If someone else is supporting the recipient of my alimony payments, why do I have to continue to pay alimony?” A cohabitation agreement may be useful in these situations to clarify the nature of the new relationship, while family mediation might also be useful to renegotiate the terms of the alimony agreement.
Cohabitation and Common Law Marriage
You’re probably not common law married.
Common law marriage does actually exist in Florida, but only under very narrow circumstances, and it is getting phased out over time. It is important to know whether you are common law married because common law marriage carries with it all of the same rights, benefits, and protections as traditional “ceremonial” marriage. From a legal perspective, they are equivalent.
Common law marriage is a 200-year old concept where people are considered married via an informal agreement rather than the usual process of obtaining a marriage license and holding a marriage ceremony. No common law marriages can be entered into after January 1st 1968, with one exception: common law marriages which have been validly entered into in other states.
This is allowed through an even older legal principle of “comity” which is the idea of giving deference to other states and other courts whenever possible. So if common law marriage is permitted in another state or country, then we allow it here too, unless there are good reasons not to.
It can be hard to know whether a common law marriage was validly entered into in another state. It depends on whether a couple, who was otherwise eligible to marry, created a “moment of assent,” in which they mutually expressed their desire to be married from that moment on. Proving that moment occurred can be difficult, which is where cohabitation comes in.
Cohabitation, which remember is just a descriptive term, is a strong piece of evidence that a common law marriage has taken place. It is not enough, by itself, to prove or establish common law marriage, but it is one detail that could be used to make the argument.
Most couples inquiring whether they are common law married are not, and never will be, even if they quarantined together or have lived together for a long period of time. So yes, there is common law marriage in Florida, but not a lot of it, and there will be even less of it as time goes on.
Cohabitation Agreements Are Useful
Cohabitation agreements are just as legally binding as marriage and divorce. They can be oral or written, and can be extremely detailed regarding support, property allocation, and parental responsibilities. They are useful in a variety of ways:
Cohabitation and Paternity
Unmarried parents often want to establish paternity and formalize a child support agreement so their child’s financial needs can be identified and budgeted. Cohabitation, by itself, is not enough to establish paternity. A cohabitation agreement can be useful to identify and clarify parents’ rights and obligations, including a time-sharing visitation or custody schedule. Family mediation can be used to prevent misunderstandings and provide a space to think about and discuss emotional issues that may be difficult to talk about. It is a forum to receive legal information and logistical advice without taking sides, so each parent can enter a legally binding agreement which accomplishes the things most important to them.
Cohabitation as an Alternative to Marriage
Some people may be knowledgeable about divorce statistics and want to use cohabitation as an alternative to marriage because they do not ever want to get a divorce. Others might have strong cultural or religious reasons to avoid divorce, so they might be averse to marriage as well. For example, a Jewish divorce could be complicated by the requirement of obtaining a “get”. If divorce is not a viable option, it may be useful to think about alternatives. A cohabitation agreement can cover all the same topics addressed by marriage and divorce, including the division of assets and liabilities, support obligations, and parenting plans. Moving in together with a cohabitation agreement already in place can be a great way to see what married life would be like, as the agreement could carry over into the marriage as well.
Cohabitation and Older People
Older people who may have already gone through a marriage and divorce may not “need” another marriage, but would like to include marriage-like benefits into their relationship. Health insurance, power of attorney over health care decisions, and tax considerations are all topics that could be addressed in a cohabitation agreement. These might work in tandem with wills and trusts in order to make sure heirs and other loved ones are taken care of if someone passes away.
Cohabitation and LGBTQ Relationships
As of 2015, marriage equality has been established in all 50 states. LGBTQ people can get married, divorced, and can adopt without discrimination. This speaks to the state of Florida evolving its understanding and definition of a family. But there is one area where Florida laws still lag behind. When two parents use artificial reproduction to conceive a child, the biological parent may retain parental rights, including the right to relocate the child away from the parents who have been taking care of him or her since birth. A cohabitation agreement would ONLY be able to prevent this from happening if the non-biological parent takes the additional step of formally adopting the child or marrying the other parent.
Some help may be on the way in the 2021 legislative sessions. A bill has been introduced in the House of Representatives (HB 185) that would create and define the concept of an “extended family member,” who may retain some legal rights and authority over a child, even without being a biological parent. But in the meantime, formal adoption or marriage would have to supplement the cohabitation agreement.
Cohabitation and Polyamory
One subset of romantic relationships still does not have traditional, ceremonial marriage available to them under Florida law, even with marriage equality established in all 50 states. For polyamorous relationships, a cohabitation agreement (or a “getting together” agreement if they do not technically cohabitate) is the only option if the people involved want their relationship to include any or all of the rights and protections of a traditional marriage.
If there are children involved, a cohabitation agreement may be very useful in discussing and resolving important issues such as which parenting tasks will be taken on by whom. What will be discussed with the children and when, and what will the boundaries be regarding decision-making among the people in the relationship? Family mediation would be the perfect setting for an inclusive, non-directive conversation that emphasizes unity and clarity within this type of family.
Cohabitation agreements are a versatile and powerful way to structure a variety of relationships. They are legally binding agreements in which you decide the important terms and details of your relationship, including support, custody, and parenting.
Family mediation can help you communicate and reach agreement about important relationship issues which may be emotionally difficult to discuss and legally difficult to understand. Please schedule a free online meeting to discuss how a cohabitation agreement might be beneficial to you and your relationship.