Time To Move In Together? What Georgia Law Says About Cohabitation
In the case of a divorce or separation, many people may view cohabitation as less risky than marriage. But the truth may be quite the opposite.
Although it’s different from marriage, living with a partner has legal and financial implications. A domestic partnership does not provide tax benefits or spousal inheritance rights like a marriage; it also does not automatically establish paternity or guarantee parental rights if children stem from the relationship. You may need legal action to gain custody rights if the relationship dissolves.
Our professionals weigh in to shed some light on the implications of cohabitation according to Georgia law. At Stearns-Montgomery & Proctor, we can help you navigate the complexities and understand your legal rights and responsibilities as a cohabiting couple. These key insights will help you decide what makes the most sense for you and your partner.
What Is Cohabitation?
Cohabitation is when two people in a physical relationship live together without marriage. Many couples see cohabitation as a “trial period” before marriage; it can also form a long-term arrangement for those who don’t want to go through the legal process of getting married. Couples who cohabitate may share household duties and expenses but typically do not have the same legal rights and protections as married couples.
Another significant difference is that you can only end a legal marriage by formal divorce or annulment. On the other hand, cohabitation can end with a simple, informal decision between the parties. The emotional implications can, however, be equally devastating.
A common misconception around cohabiting couples is the common law marriage. This assumes that partners have similar legal rights to married couples after a certain period of living together.
This does not exist in Georgia—you are either legally married or unmarried. Unmarried couples do not obtain the same or similar rights as legally married couples, regardless of their time together.
Legal Implications of Cohabitation in Georgia
While some couples see cohabitation as a legally less-complicated way to enjoy their relationship, many implications come into play should the relationship end. Often, not having the legal backup that marriage offers can count against you.
First off, I’d probably ask, “What are your reasons for not wanting to get married?” Because obviously, moving in together: are you buying, are you renting, what assets do you intend on sharing? All of this can play a part in whether or not it's better to simply marry. Or: “When it comes to it, I don't want to get married because I simply don't believe in it.” I understand that—but really, in Georgia, there's not a ton to protect you if you're not married.
— Lily Lutton, Stearns-Montgomery & Proctor
Property Rights for Unmarried Couples
In a divorce, spouses are legally obligated to divide their property according to established procedures. Meanwhile, when a cohabitation relationship ends, the parties can divide their property however they choose. However, the absence of legal guidelines can often complicate matters and create conflict.
Joint Assets and Liabilities
In a marriage, the law considers any property and assets gained during the union as marital property. This means in the case of divorce, assets are divided equitably. Co-habitation, however, doesn't change the ownership of personal possessions. If your partner moves into your home, you remain the sole proprietor. You can thus make decisions related to the sale of your property without involving them.
Cohabitating couples also do not have the same legal rights regarding medical care decisions for their partners. In a marriage, a spouse typically holds the right to make decisions related to health care and financial matters on behalf of their partner in the event of illness or incapacitation.
With cohabitation, no matter how long the relationship or close the bond, immediate family members generally hold the right to decide for an ill or incompetent unmarried partner.
If you choose to cohabitate, establish a general power of attorney or health care power of attorney—this will ensure your cohabitating partner holds the authority to make these decisions.
Inheritance and Estate Planning for Cohabiting Couples
In Georgia, marriage provides an important advantage to spouses: the legal right to inherit, with or without a will. Cohabiting couples, however, can only inherit if specified in a will or trust.
This means if one cohabitant dies, their property passes to whoever they named in their will. If they don’t have a will, property, and assets go to family members according to state laws. As the surviving partner, you will have no claim to the estate unless your partner had explicitly stated so.
Financial Obligations and Alimony for Unmarried Couples
Marriages may entitle a spouse to alimony or other forms of support in a divorce. In contrast, cohabiting partners have no financial obligation to each other unless a contract is in place. A dependent partner can thus find themselves in a dire financial situation after a breakup.
Child Custody and Support for Cohabiting Couples
If you have kids in a cohabitating relationship, the law does not automatically consider you to be the biological and legal father of the child. You have to go through the process of legitimation.
— Lily Lutton, Stearns-Montgomery & Proctor
In a legal marriage, there is an automatic assumption that the husband is the father of the child born during the marriage. Not only does it ensure his name is on the birth certificate, but it provides the child with legal inheritance rights and access to health care, social security, and other benefits.
In the case of cohabitation, this is not the case. There is no automatic presumption of fatherhood—which means no custody rights in the case of separation.
Protecting Your Legal Rights
The best way to protect yourself and your assets in a cohabitation relationship is by drawing up a Cohabitation or Domestic Partnership Agreement. This serves almost like a pre- or postnuptial agreement in a marriage. However, there are many rights and responsibilities automatically in place in a marriage partnership that don’t apply to cohabitation—leaving you a lot more vulnerable.
A Joint Property Agreement is a document stipulating the contractual legal rights and responsibilities of partners when a couple decides to own property together in a long-term committed (but unmarried) relationship.
Drawing up such an agreement is key to preventing potential disputes and misunderstandings in the case of separation. It provides essential guidance for dividing the property and protects your right to property and asset ownership if your partner dies.
When it comes to custody and child support, the Georgia Department of Human Services (DHS) advises that the father completes an Acknowledgment of Paternity form in the hospital after the child’s birth. This will not give the father physical or legal custody rights in a cohabitating relationship. He must initiate paternity proceedings in court, including a legitimation action, to receive custody and legal rights.
If parentage is established, the father is legally obligated to financially support the children in the case of separation, where he is the non-custodial parent.
Get Advice from a Cohabitation Knowledgeable Attorney
Understanding your options and possible risks in a cohabitation relationship is important. Considering that these situations are often less formal than a marriage contract, keeping a family law attorney by your side can help secure your rights and protect your assets.
At Stearns-Montgomery & Proctor, our attorneys have the experience to appropriately address your concerns regarding assets, property, will, children, and power of attorney. Schedule a consultation with one of our team members today to help you make the best decisions for your future, relationship, and children.
