Is Marriage Right for You?
Weighing the Legal Benefits of Marriage vs. Long-Term Cohabitation in Virginia
With same-sex marriage now legal in Virginia, it would seem that marriage would be on the rise. However, a Parents magazine article reports a trend among millennial couples to forego marriage for a number of practical reasons, including financial, personal preference, and the fear of divorce.
As a family law attorney, this trend concerns me. The laws of most states and the federal government allow certain protections and benefits to married couples. Those things that the LGBT community fought so hard for are being dismissed by many millennials as “unnecessary.” The Parents article does not warn of the legal risks that accompany maintaining long-term cohabitation relationships without entering into marriage, and it is important to consider all the risks and benefits of marriage before you make the decision to forego getting married.
One of the examples that Parents highlights as a reason not to marry is the need to purchase a home when one of the parties has poor credit and the other has good credit. The argument Parents seems to make is that it would be detrimental to the couple to be married in this situation, because the bad credit of one party could keep the couple from purchasing a home if they were married. This is simply untrue. There is no reason that a married person cannot purchase real property and have the mortgage be only in his or her name. The house can be titled just in that person’s name, or it can be jointly titled as tenants by the entirety even if just one person is on the mortgage.
Tenancy by the entirety is a special category of property ownership reserved just for married couples. When a couple owns property as tenants by the entirety, each has an equal right to the entire property. This means that if one of the parties dies, the property automatically becomes the sole property of the other spouse. Further, the debts of one of the parties cannot be attached in the form of a lien to property that is owned this way. If one spouse runs up a large individual credit card debt and is sued on that debt, the property itself is shielded. By contrast, where parties own property together as tenants in common or joint tenants (the two ways unmarried people can own property together), any debt of one person that is recorded against the property is the responsibility of all the title owners. So, the ability to own property as tenants by the entirely is certainly one huge benefit of being married.
In April, I wrote about the benefits of divorce versus annulment for spousal support, which constitute another major reason to consider marriage instead of long-term cohabitation. Many unmarried couples with children, like many married couples with children, decide to have one party stay at home or reduce his or her work hours to be more available for the kids. Over time this can greatly reduce that person’s earning capacity. When parties in this situation divorce, the person who has sacrificed their career for the sake of the family can receive spousal support. The amount and duration of spousal support are things that are up for negotiation or court determination, but the option is there to protect the lower-earning spouse, at least until that person can reenter the workforce and start earning a regular salary. When an unmarried couple breaks up, there is no right to spousal support, and even though the couple made the joint decision for one party to stay at home, the lower-earning spouse is left high and dry.
The rules for dividing property also vary greatly for married vs. unmarried couples upon a divorce or breakup. Under Virginia law, all property accumulated by a married couple, regardless of title, is subject the court’s equitable distribution in a divorce. Things like cars, televisions, furniture, and other personal property items can be equitably divided—which usually means their value is split 50/50—during a divorce. If the parties were never married, there is no mechanism for dividing the value of those items. If one party in an unmarried couple accumulates large amounts of their own property, including bank accounts, retirement accounts, etc., then they can simply keep it. The other party can be left with nothing. With a married couple, all property accumulated during the marriage is considered marital, and is divisible upon divorce.
Regarding children, states have laws that allow courts to establish custody and child support for parents who are not married. However, in many states, unmarried couples cannot adopt or act as foster parents. There is also the issue of the presumption of parentage based on marriage. If parents are not married, the child is not necessarily presumed to belong to the other parent. A simple DNA test can answer the question, but if a dispute arises, it can lead to expensive litigation to prove paternity which would otherwise be a non-issue if the parents were married.
Other benefits to being married include: the ability to file taxes jointly, which is the most favorable tax filing status; the ability to make health care decisions for the other spouse in the event of an emergency; and inheritance rights when one party passes away without a will.
Another major marriage benefit used to be the ability to cover the other party on a family health insurance plan. The modifications in insurance laws have made it easier to cover domestic partners, but this is still something that should be considered when deciding whether to tie the knot.
The bottom line here is that it is false to conclude that staying in a long term, committed relationship without getting married is “safer” than being married, just to avoid a potential divorce. A break up can be as financially devastating as a divorce, and even more so when you have no legal mechanisms to protect yourself financially.
All couples who are considering the choice between marriage and long-term cohabitation should seriously look at the legal protections a marriage offers, and determine if remaining unmarried is in fact the best choice in the long run. A family law attorney can help you understand the legal implications of both paths. An attorney can also help you make binding agreements to put into place some of the legal protections of a marriage if you decide to remain unmarried.