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If you are asking the question, “Is marriage right for me?” you are not alone. Many couples want the legal and financial protections marriage offers, especially if they own property together or have a child, but they aren’t ready to say vows. For some, marriage has a negative connotation. Maybe they already tried it once and it ended in divorce. Or they grew up in a divided household. Others simply don't believe in the institution, or they need more time to make sure their partner is "the one." There can also be financial benefits to avoiding marriage.
Fortunately, there are numerous alternatives to legal marriage including common law, domestic partnership, and cohabitation agreements. Each option offers some (but not all) of the benefits of traditional marriage and has advantages and disadvantages. The benefits vary state by state, so it's important to consult a matrimonial attorney near you before deciding on an option.
For general guidance and insight, we turned to attorney Madelyn Jaye. As she put it, her job is to "help you determine what domestic arrangement best fits your personal lifestyle and goals."
Meet the Expert
Madelyn Jaye is a matrimonial attorney in New York City.
A domestic partnership, also called a civil union, is a popular option for couples because it offers many of the same benefits to marriage. "A domestic partnership, like a marriage, is a legal relationship under the laws of a state," said Jaye. "It provides committed, unmarried couples that are living together certain, but limited, guaranteed rights." Before same-sex marriage was legalized many gay couples relied on domestic partnerships to protect them financially and legally.
If you want to get married all you have to do is get a marriage certificate from the local government. Securing a domestic partnership is a little harder. You have to prove that you are in a committed relationship with evidence such as a joint bank account or a mortgage. Requirements vary by state but most require proof that you currently live together and have for some time.
A domestic partnership offers many of the same benefits as a marriage. If something happens to your partner you automatically inherit his or her assets. You get hospital visitation and can add your partner to your health plan (or chose to use his or her employer benefits). Depending on how much you and your partner make there can also be some financial benefits to domestic partnerships. Some couples end up paying more taxes as a married couple than they would if they filed individually. A domestic partnership avoids that outcome. In many states, it is also easier to terminate this type of arrangement than a marriage (in some cases it's as easy as filling out a form).
Because domestic partnership arrangements vary by state, one state might not recognize the benefits of the union that another state does. That means if you move make sure you check in with an attorney.
Common Law Marriage
A common law marriage does not actually require you to file anything with the state. If you tell the community you are married, call each other husband and wife, live together for a certain number of years, and use the same last name you can have a common law marriage. You have all the same protections as a married couple, and you have to get divorced if you split up. "The couple holds themselves out to friends and family as being married, live together for a period, but never formally marry or obtain a marriage license," said Jaye.
While common law marriages sound great (you can be married without doing any of the work!) they aren't that common in America. "Today common law marriages are only recognized in 8 states and even where they are recognized common law marriages can be fraught with open questions resulting in litigation," said Jaye.
The takeaway: It's better to make your arrangement official instead of hoping the law will recognize you as married.
In a domestic partnership, the state decides what benefits you get as a couple. A cohabitation agreement is different; in this arrangement, the couple decides what rights and obligations each partner owes to each other. "Cohabitation agreements, unlike domestic partnerships and civil unions, are contracts negotiated between a couple and can be as narrow or as broad as the couple wishes them to be," said Jaye. "A cohabitation agreement is a contract and should be recognized and enforceable in all state jurisdictions."
Non-married couples use cohabitation agreements the same way married couples use prenuptial agreements. They spell out how property, debt, and money will be distributed and handled during the relationship. They also dictate what happens if the relationship ends. For example, if a couple buys a house together, what happens to that house if they break up? They can also discuss how expenses will be paid. Will groceries be split 50/50 or will one party cover them every week.
Not every couple needs a cohabitation agreement. They are often used when one partner enters a relationship with a lot more assets than the other or if the couple accumulates a lot of assets during their relationship. It's a way to avoid confusion and fighting if the relationship ends. Cohabitation agreements don't offer any of the benefits of marriage like the ability to use one another's health insurance.
How to Choose the Best Alternative for You
If you find yourself in a committed relationship, and you are ready to make it official legally, how do you know where to start? Jaye's advice is to start talking with your partner early on about your relationship goals. "Too many couples avoid having open, honest, truthful discussions about their individual and joint assets, liabilities, finances, and goals," she said.
Think about what is important to you as a couple. Does one partner need health insurance from the other? Are you buying a home together and want to protect your share of the investment? Jaye also says to imagine what decisions you will be making in the future: "Too many couples think in terms of their current situations when planning for the future, ignoring that the future could bring a change in circumstances that need to be considered."
It is helpful to seek out the guidance of an attorney. This professional can talk you through things you need to consider and map out what legal benefits you will have in your state. "An experienced family law attorney can provide you the framework for the important discussions you may find difficult to broach on your own, can advise you of the legal options available to you in your state, can guide the financial planning of your future together, and can leave the champagne, chocolates, and romance to you," said Jaye.
She also encourages you to have these conversations early, before you have a child on the way or are already fighting over shared property. As Jaye put it: "The time to consider your options should not be when faced with time constraints or pressure."