Cohabitation has become more common and more accepted in today’s society. Statistics vary, but some sources claim as many as 60 percent of couples today live together before marriage. People of different generations, backgrounds, and beliefs could argue all day about whether cohabitation is a good thing or not. In the end, though, the practice is widespread enough that it is important for unmarried couples to think about the legal options and consequences when they decide to live together.
First off, the North Carolina law that made unmarried cohabitation illegal was struck down as unconstitutional by a superior court judge in 2009. That decision is not necessarily binding on the whole state, however, so cohabitation may still technically be illegal. It is unknown so far what other state courts would say on the matter, but the law against cohabitation (passed in 1805) is very unlikely to be enforced.
North Carolina does not recognize common law marriage, and there is no “legal status” associated with unmarried cohabitation. Thus, a couple who lives together for many years and then breaks up, is still not usually entitled to the remedies associated with divorce: equitable distribution of property and alimony. Property is simply divided according to who owns title, and dividing personal property (i.e. furniture and valuables) can of course become very difficult for those whose lives and money have become so intertwined.
So how can cohabiting couples protect themselves and plan for the future? First, don’t be afraid to talk about these issues before moving in together. If you’re close enough to live together, you’re close enough to talk about protecting yourselves and each other financially if things end poorly. Think of this just like betrothed couples discussing a pre-nup — it’s unpleasant to think about, but in some cases essential to protecting your interests.
Second, unmarried couples in North Carolina are free to make contractual agreements to establish rights and obligations should the relationship end. So although unmarried couples are not granted the rights associated with marriage, they can make express agreements about dividing property in the event of a break-up, and the agreements will be honored by courts (as long as they are not based upon sexual services). Before acquiring any substantial property interest together, it is very wise to make a written agreement about what would happen to the property if the relationship ended. It may be a touchy subject, but it’s much easier to reach an agreement when you’re on good terms than it will be if things go south.
Note: North Carolina still does not recognize same-sex marriage, so this advice applies to same-sex couples who consider themselves married, as well. Although the law denies the privileges and rights of marriage to same-sex couples, there are ways to secure some of those rights through contract before (and after) joining your lives together. Goodness knows it’s not romantic, but it’s important!
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Hickory Family Law Blog 