Cohabitation Issues

An Excerpt from The Divorce Mediation Answer Book

By Carol Butler, Ph.D. and Dolores D. Walker, M.S.W., J.D.
Updated: August 31, 2014
Divorce Mediation


The issues addressed in this section are rather complex, and we encourage you to carefully read the specific questions throughout the book which relate to your specific situation. In this chapter, we address some of the issues which concern unmarried heterosexual couples who have been living together and want to separate and may or may not be living in states which recognize common-law marriages; and gay men, lesbians, and transsexuals who have either been living in a same-sex relationship or who are legally married and seeking a divorce.

In all of these situations, we encourage mediation because property settlements and support arrangements may be necessary and state divorce laws often do not apply.

Common-law marriages

We have been consulted by separating heterosexual unmarried couples who are shocked to discover that there is no such thing as a common-law marriage in their state. The original purpose of legalizing common-law marriages was to offer couples the protections and benefits of legal marriage when it was difficult to get married because of the long distances clergy would have to travel to perform weddings. In recent years, with the increasing number of couples living together without necessarily intending to get married, most state laws have been changed and no longer recognize common-law marriage.

In this chapter, we explore ways to establish that you have a common-law marriage and tell you where it may be recognized. If you can establish a legal marriage, you will have to follow all the rules of the state concerning divorce and you will be able to use mediation to reach a settlement.

Unmarried heterosexual couples who do not have common-law marriages

We encourage mediation for unmarried couples who do have common-law marriages because courts are seldom available to resolve issues through litigation These issues can be mediated between the two of you. However, you should be aware that even if you have a written contract with each other about property and/or support issues, some judges might void the contract if one of the partners petitions the court to have it invalidated, interpreting it as a contract for sexual services.

The good news is as long as you act in good faith, your contract will remain as you intended, and in many jurisdictions it will be considered an acceptable basis for the purpose of settling property and support issues. Issues covered in these contracts might include loans, family gifts, the purchase of homes and furniture together, the responsibility for debts, and repayment to one of you for giving up a career to move.

Gay/lesbian issues

Although in 1996 the Defense of Marriage Act severely limited benefits to same sex domestic partners, each year thousands of same sex couples continue to exchange vows in religious ceremonies performed by sympathetic clergy.

Currently, lawsuits are under way in several states to determine whether same sex couples have the right to marriage licenses, civil marriages, and specific domestic partnership rights. At the same time, in the last few years, at least 28 states have prohibited gay/lesbian marriages.

If you or your spouse are divorcing because one of you is changing life styles, there may be emotional as well as legal issues to consider. This may be a time when one or both of you are suffering feelings of abandonment, betrayal, and anger. These feelings may create barriers in making the best financial and parenting plans for the future. Mediation will be particularly helpful for you since you can address both the emotional and legal aspects of your separation.


Of course, married or not, if you have children and you and your partner are both recognized as the legal parents of your children, your state's child support guidelines will be available to use as a basis for your financial and parenting arrangements. However, you will probably still need to negotiate all your other financial issues through private mediation. If only one of you is the legally recognized parent, things are more complicated.

Our conclusion is that for an unmarried couple who is ending a relationship, the best way to proceed is almost always to use mediation. In addition to reading this chapter, we encourage you to read the other parts of this book, since you will have many similar issues to resolve in mediation

A psychotherapist and mediator, Carol Butler (PhD) is a practitioner member of the Academy of Family Mediators. She is the co-author of The Divorce Mediation Answer Book. Co-author Dolores Walker, M.S.W., J.D. is a psychotherapist and attorney, specializing in mediation. She is a Practitioner Member of the Academy of Family Mediators.

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April 28, 2006
Categories:  Legal Issues

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