LEGAL MATTERS: Living together is commonplace but lacks the legal protections

Living together is commonplace, but it lacks the legal protections of marriage if couples split

'Ashleigh” and 'Robert” are splitting up after 12 years together. The last four years have been hard. Robert has struggled with unemployment, substance abuse and depression. They have a 2-year-old son, 'Cole.”

Ashleigh is disappointed and frustrated with Robert's substance abuse and moodiness. Robert resents Ashleigh's efforts to control him, reminders of his failures and the many things Ashleigh does to help him. In their last fight, Robert angrily tells Ashleigh to get out or he will throw her out. Ashleigh's 13-year-old daughter by an earlier relationship has told Ashleigh and Robert their fighting makes her sad and that she is afraid for herself and Cole.

Ashleigh knows a separation is needed, but she is reluctant to move and give up the only home she and the children have known the last 12 years. Although Robert owned the house before Ashleigh moved in, Ashleigh has invested lots of time and effort helping turn it into a beautiful home. In addition, Ashleigh has made Robert's mortgage payments, paid off his car, and covered most of the household expenses for the last four years.

Ashleigh decides it is time to learn her rights.

In her first meeting with an attorney, Ashleigh learns she is in a precarious position. She does not have the legal right to force Robert out of the house he owns, and she is subject to possible eviction by Robert. She also learns it could take a year or more to recover her investments in the house through a lawsuit. If she brings a case, the burden will be on her to prove her contributions have unjustly enriched Robert. The possible legal expense is daunting.

Worse yet, although Robert has no legal rights to her daughter, Cole's birth will require her to have a continuing relationship with a man she now considers an unfit parent and her enemy. And, she learns, it could cost thousands of dollars just to work out the details of a support and custody arrangement - even if she just decides to walk away from the property. Ashleigh feels completely victimized.

MARRIAGE RIGHTS

Many changes have come from the widespread adoption of no-fault divorce laws. One is the increasing number of people who forgo marriage before living together or starting families. Because there is little public education about the differences between marriage and cohabitation, however, unmarried domestic partners face increasing legal problems.

The reasons is simple: Formal marriage brings legal rights and protections that partners who merely live together don't receive.

The big problem with simply moving in together and becoming a family is most people do it without thinking about what will happen if their relationship ends.

How will any children be cared for and supported? If one partner stops working to stay home, is there any assistance they can obtain if it is necessary to relocate and find work at the end of the relationship? Will there be compensation for work done by one partner that increases the value of property that belongs to the other?

A legal marriage answers these questions. And while legal marital rights vary from one state to another, here are some of the more important:

l Both parties to a marriage are presumed to be legally responsible for the care and support of children born or conceived during the marriage. Children born to parents who are not legally married may go unsupported by their father until paternity is established; this can take time and involve costs.

l In a marriage, neither spouse can remove the other spouse or the children from the home without consent. This right can only be overcome by showing a spouse has committed domestic abuse or upon proof a parent or the children are in imminent danger of physical harm. Unmarried partners are often surprised to find they have few rights to stay in a home they have lived in for a long time and that they may be required to move out quickly.

l Married partners may receive spousal support if they are unable to support themselves and the other parent has the ability to do so. Unmarried partners do not have this right.

l Married partners can receive a share of property from their spouse in divorce, even if it is not owned or titled in their name. Unmarried partners do not have this right.

There are many other rights and benefits of marriage, but these are the most crucial at the end of a relationship.

‘COMMON LAW'

Sometimes one of the parties living in a romantic relationship believe their relationship has been so long and public they should acquire rights through 'common law marriage.” Iowa is one of only nine states plus the District of Columbia that recognizes such marriages.

Without an official marriage certificate, the 'common law” partner seeking the rights and benefits of marriage must prove each of the following:

l Both of the parties had a present intent to be married.

l They made a public declaration they are husband and wife.

l They lived together continuously.

l They had the 'legal capability” to marry.

These four tests are often a difficult burden to meet, particularly the first two elements. As a result, most claims of common law marriage fail.

ALTERNATIVES

Given that so many people are deciding to become romantic partners without marriage, and that difficult issues arise when such relationships end, what is the alternative?

One option is a non-marital cohabitation agreement, or contract, where romantic partners outline their agreement on property, debts, bank accounts and custody and visitation of children from the relationship.

This is an evolving area of the law, where consulting an attorney will help you clarify and learn your rights.

l Matt Brandes is a family law attorney with Simmons, Perrine, Moyer and Bergman in Cedar Rapids.