Should We Get Married? Rights and Responsibilities Conferred by Marriage Versus Cohabitation

The landscape of the typical American family is changing. While cohabitating without the benefit of marriage used to be considered taboo, it is now relatively common for couples to decide to maintain their relationship without getting married, and even purchase property and have children together. Whether you should get married to your partner is obviously a highly personal decision, but there are some benefits to getting married versus simply cohabitating.

Before a break up or divorce, there are several benefits conferred by marriage that are not automatically granted just by virtue of sharing a home. For example, a married couple may discover they gain a significant tax advantage by filing jointly. A couple who is not married cannot claim these advantages. In addition, in a medical emergency, absent pre-existing paperwork already executed by the parties, a significant other will likely be left out of the decision-making loop, as he or she would not be next of kin, as would be a spouse.

During a divorce, the court will make an equitable distribution of marital property and marital debt. With few exceptions, this means that any property and debt that the couple acquires during the marriage will be split up by the court. However, if the parties were never married, there is no easy way to split up any property they may have acquired during their relationship. This also means that, for example, while during a divorce the parties would each be entitled to divide investment and retirement accounts, a break up without a marriage will not have any similar protection. Similarly, although an economically disadvantaged spouse will often request and be awarded spousal support, the process for any similar financial assistance following a break up is quite limited. Such a request would be called a request for palimony, and is typically strictly limited to those cases where the parties have an agreement in writing.

Issues of child custody are less impacted by marriage. Regardless of whether the parties are married when a child is born, both parents will have the right to request custody or visitation in the even the relationship disintegrates. Child support will also be ordered without regard to whether the parties have ever been married to each other. It should be noted, though, that a father who is not married to the mother of his child will need to take extra steps to establish legal paternity, whereas a man who is married to the mother will be legally presumed to be the father of the child.

Getting married is a highly personal decision. We have helped many clients understand their rights and responsibilities in family situations both with and without marriage. There are creative ways to address these issues without getting married.  To find out more, call us today at (732) 529-6937 to talk about your case.
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