Cohabitation Defined in Arkansas
The term "cohabit" and "cohabitation" are not defined by Arkansas legislation or the Arkansas Constitution. However, courts here have defined that term as a living arrangement between two people who are not married but live together in a relationship similar to marriage. An example of that relationship is where two people share a bed, live together as a "unit," keep their finances separate, and/or have children together. The Court usually evaluates the nature of the parties’ relationship when determining whether they are cohabitating.
At least one statute discusses cohabitation . The law provides that an individual’s ability to receive a benefit or payment under insurance or other existing plans continues uninterrupted when the individual changes his or her primary residence in cases of cohabitation. A health care provider may not refuse to provide services to individuals who would otherwise be eligible for benefits on the grounds that the individuals live together and engage in a relationship versus a normal marriage. The full version of this statute can be found at Ark. Code. Ann. sec. 23-85-161 from the Arkansas Code.
Cohabiting Couple’s Rights Under the Law
Cohabitating couples do not have the legal protections that comes with marriage. For example, they do not have the right to make medical decisions for their partner in Arkansas. So if a cohabitating partner is hospitalized or injured in an accident, the other person would need a power of attorney to make those decisions on behalf of their partner.
Similarly, property rights of a cohabiting couple depend on who purchased the property. For instance, if one side of the couple purchased a piece of property prior to living together and did not have the title or deed changed into both names, then the other person would have no legal right to the property. On the other hand, if a couple purchased a house or condo together, they would own the property together as a joint venture. Although not unique to cohabitating couples, it is important to remember that divorce laws apply to property division should the relationship dissolve. If the relationship ends, each party would be entitled to 50% of the equity in all marital assets. The main difference in a non-married couple seeking a divorce and a married couple seeking a divorce is the delay before being able to be granted a divorce. A married couple may seek divorce immediately under the rules in Arkansas. A non-married couple must be legally separated for 18 months. Cohabitating couples do not share inheritance rights either. The same rules that apply to property division apply to a couple’s estate if one of them were to pass away.
Cohabitation Agreements in Arkansas
A cohabitation agreement can be a useful tool for couples. They offer a legally binding way to protect property and assets, which will be important should the parties decide to separate or separate even in the event of a death since Arkansas has rules of succession, and they can help avoid litigation if the relationship ends badly, and sometimes these agreements come in handy in a marital situation.
A cohabitation agreement, however, is not an ideal mechanism for premarital planning. In the event of a spilt, generally, decisions about distribution of assets can be litigated through a court in equity; and the parties, because they are parents, can address child support and custody issues with that court. The general rule is that equitable distribution of property when married is better than contract rights related to property distribution when unmarried, and economic provisions for children will be determined under statutory law in 9-10-101 et seq, when both parents are custodial parents and reside in Arkansas.
The cohabitation agreement starts with an introductory section that a couple can be very specific about what they want or focus on broad issues. Subsequent sections usually include:
A third section can sometimes speak to issues related to a break up, whether it is informal, where informal decisions are made about who gets what, how things are done when one person has rights when the other person is not competent in a decision making region; or formal, where essentially the parties make the same arguments they would make in divorce court about the length of the relationship, whether the parties were in a marriage like relationship, how to distribute property, etc.
Another area people often want to address is the automatic exclusion of the new partner from inheritance when the one partner dies intestate (without a will) or from a will. In fact, this is often a very good place for some type of non-marital agreement since more often than not, a surviving spouse is going to have rights of spousal election that can be exercised and overcome the agreement that excludes the surviving spouse as a beneficiary.
Cohabitation contracts that are prepared by parties need the elements of any contract: offer and acceptance, consideration (money is always a consideration), sufficient identity of the subject matter or legal object, a legal purpose, and mutual consent.
What I often see with cohabitation agreements is that the more specific the parties are about their expectations, the less likely is the opportunity for litigation; however, if the parties try to be global and cover everything in a sentence or two, then sure enough, there will be some issue that will flare up and litigation will ensue.
Financial Impact of Being Unmarried Living Together
Financial responsibility in a cohabiting relationship is not automatically split in an equitable way, and determining how household expenses and debts are split can be complex.
It is important to know that the way that you pay for purchased items in a cohabitating relationship will not only determine how you own the item, but where you might end up with debt. Many young people are now opting to "split the check" when going out to eat rather than establishing a financially supported household, making a living together straightforward. While this splitting of the check seems fair, it can actually pose complications when it comes to creditworthiness when one party simply refuses to pay.
If a credit card is opened in joint names, both parties are responsible for the debt, regardless of who purchased the item. If an unmarried couple opens an account where funds can be drawn from and placed back in, called a "joint deposit account," the law makes the following assumptions:
The above-mentioned presumptions are rebuttable, meaning either party can present evidence to show that the presumptions set forth in the statute do not apply. If it can be shown that debt was incurred by one party where it was intended to be a gift or a loan, the court may order that the creditor may collect from the person whose name is on the debt.
In terms of marital debt, courts may establish a non-marital account for any credit card debt prior to the date of cohabitation or any credit card for which the non-account owner holds no legal responsibility for that debt, leaving the account owner solely responsible for the amounts due.
For more complicated cohabitation arrangements, it is recommended that one speak with an attorney about goals and objectives so shared household bills, debts like mortgages, and those unexpected financial obligations are easily met.
Cohabiting Parent Rights and Child Custody
When a child is born to unwed parents, the law treats the situation similarly to a married couple having a child. Each parent has equal rights to that child until a court decides otherwise in a divorce or legal separation situation. In practical terms, if an unmarried couple breaks up and there is a dispute over where the child should live, the courts will award custody upon finding what is in the best interests of the child at that point in time. If the couple shares physical custody of the child and there is no dispute, the child has a home and residence with each parent and there is no child support owed from either party. However, if the child is living only with one parent, the other parent must pay child support directly to the other parent. A child support award can be modified , but both parents must give notice of their desire to modify or to obtain child support. Visitation rights are not guaranteed for non-custodial parents but are widely granted unless the court finds they are not in the child’s best interests. Courts can issue contempt orders against parents who violate the court’s visitation orders. If a child is born to cohabiting partners the mother has sole rights to the child, including determining the name and sui generis rights (the right to sue or be sued on behalf of the child) of the child until a parentage action is initiated. Paternity does not give the father access to the child. Rights to visitation, support, etc., are not awarded the father until a court enters a parentage order.
Common Law Marriages in Arkansas
Some may think Arkansas recognizes common law marriage, but Arkansas never has. And while a number of states acknowledge common law marriages to promote fairness – in allowing access to health care or sharing assets – Arkansas has rejected that idea over a quarter of a century ago (In 1997, the Arkansas General Assembly passed a law specifying that "no common law marriage exists in this state.") as it is a concern for the welfare of those who would be at the mercy of their unwed partners. In other words, the state has little sympathy for common law marriages because it believes unmarried couples do not have the legal protections that come with the benefits of marriage, particularly for vulnerable people. Indeed, the Arkansas Supreme Court has held that the marriage laws do not "serve to protect" the interest of naturally married parties, but merely define whether they are married for purposes of public policy, and the same is true for unmarried couples. Arkansas lawmakers, in rejecting common law marriage, have determined that, while it may serve the interests of a particular couple, the state does not support a system that does not provide for divorcing couples, dividing property, and protecting children. Regrettably, when financial interests are at stake, some people still harbor the belief that cohabiting couples can fashion a "common law marriage" in order to enjoy the same rights as married couples. Accordingly, some people think that once a couple has lived together as husband and wife, commonly agreed to one another as being legally married, or has had a child in common, then the state will consider them legally married. This is simply not true, and our courts have consistently held this point when deciding as to the intent of the parties in marrying. The State of Arkansas requires a couple to follow its procedural requirements for marriage in order to have a legally recognized marriage. Under state law, the parties must register for a marriage license, have the license completed during a wedding ceremony that satisfies the requirements of Arkansas law as to the type of ceremony, location, and age of the parties, and will grant to the couple the legal recognition of being married. These misconceptions affect the financial interests of cohabiting couples. When a couple has decided to marry, even if only by cohabitation of 10 minutes of their time together, and elects not to lawfully marry, they may find themselves in situations where those interests cannot be easily divided or protected, cannot be characterized as belonging to husband or wife, and are subject to division by the court in a manner that neither party might think fair.
How To Separate from Unmarried Partners By Law
Separation for cohabiting couples is often a gray area with no express statutory definition of "separation" in law. It encompasses all the areas that a divorce entails, except dissolution of marital status. It can mean physically moving out, or it can be nothing more than one party moving into the spare bedroom or a room in the house that they have previously considered theirs. From a legal standpoint, however, separation means severing assets before these assets become commingled. Unmarried couples are, unfortunately, left with vague and ill-defined rules that leave them legally vulnerable because, as one Arkansas attorney noted, "[unmarried couples] have next to no protection." Essentially, the law provides value and protection to spouses should a separation become final. Yet, when they are not legally married, but merely cohabiting, they receive little to no protection at all.
Before a separation becomes final, unmarried couples often enter into cohabitation agreements spelling out what is theirs, what will be theirs in the future, and what will distribution will look like in the event that they ever separate. Unlike prenuptial agreements, cohabitation agreements establish the terms of assets that will belong solely to one person or both. These arguments are binding. Such agreements are often encouraged as a means of avoiding damage and arguing after separation. However , if they are not entered into and signed separately from a divorce agreement after the separation occurs, the likelihood that they will hold up in court if contested diminishes significantly. If an agreement is signed before a couple separates, such provisions can serve a legal purpose similar to a divorce decree. Because of Arkansas’ acceptance of no-fault divorce provisions, the parties will not argue who was at fault in the separation. They often agree to divide certain property by value instead of through one person compensating another. Without an agreement determining what assets will be treated as non-marital, unmarried couples run the risk of a divorce judge determining the issue. If an agreement is signed post-separation, it is not an accurate representation of what occurred. In this case, if an unmarried couple were to go to trial, because of Arkansas’ harsh equitable distribution rules, if the judge determines that an asset is marital property (and this determination can be based on any number of factors), it is treated as such. Although after separation, couples may move assets into one another’s names, do work on the home, etc., these actions often go unnoticed. Thus, without proper protection against the other, these assets are still deemed to be marital property.