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Law Offices of Ronald W. Rutz
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February 12, 2007: Co-habitation without Marriage

Q: My special friend and I want to move in together, but for a variety of reasons, do not want to marry. What should we do?

A: It may or may not be embarrassing for either or both of you, but first of all, everyone should understand the nature of the relationship. Otherwise, expectation and interpretations of your coupling will cause unimaginable problems, not only between the two of you, but also with family members and even third parties, such as the government.

I would also suggest that each of you republish or redo your legal documents, especially Wills and Durable Powers of Attorney. That way, both of your intentions are documented after beginning the co-habitation. Revisiting the documents will also clarify who has legal authority, especially as to medical issues. This will reassure children who may view the new relationship as a threat to them.

It is imperative to come to an understanding about use and ownership of objects in the blended home, especially as to what items are there (furniture, jewelry, etc.) and usage rights after one person dies. Countless times jewelry is gone, furniture is cleaned out of the house, the car disappears, all because actions of the children on either side. Paying attention to details involving "stuff" is essential.

Common law marriage is always a concern. In Colorado, its existence is determined by the intent of the two people. But the rub is that the intent is not only determined by what is said but also by what a couple does. If mixed signals are given off, then in weighing contradictory factors on the scales of justice, the Court could indeed find a marriage.

I like to do a document that covers the same points as a marital agreement, but one that stresses that the document reflects no marriage. Such a document has quenched the fires quickly. Remember that a co-habitation agreement can be in place, but if a couple’s actions point to a common-law marriage (despite an agreement or statements in each Will to the contrary), then the understandings contained in this agreement can still melt away.

Finally, have in place an exit strategy. Both of you are excited about the forthcoming experience, but even if it is the last thing that you have in mind, pre- decide about what happens if things do not work out, especially if one of you is subsidizing the other, or one person sold his or her house, or assets have been purchased together, etc. A document need not be put in place, but thought needs to be directed toward these issues also.

I do want to wish you the best. But in my experience, second, third and even fourth marriages compound the legal problems and should be addressed.

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