Living Together vs. Being Married: Does It Make a Difference?

I often hear people tell me, we lived together for 10 years before we got married, although we’ve only been married for 5 years. They go on to tell me that they’ve bought property, made financial commitments together, and lived together as if they were married. This question is usually tied together with a follow-up question about whether this spouse would be entitled to receive some type of alimony. When the relationship ends, that spouse is coming to lawyer to find out what their rights are.

Unfortunately, I am the one that has to pass along the bad news. In the State of Florida, unlike California and some other states, there is no palimony law. Palimony is a form of alimony awarded to one member of a non-marital couple who have separated. A palimony claim is a claim for alimony like support that arises out a relationship in which two parties have been living together or co-habitating without being married.

That means that the client has spent usually anywhere from 7 to 20 of the best years of his/her life with another person, with no legal recourse after the relationship ends. “But we lived together as Husband and Wife”, the spouse says. “Everyone we knew and all of our friends thought we were married, ” the spouse adds. The problem is in Florida that living together gives them no legal status, no matter the length of time. There is just no Palimony in Florida.

Then I get questions about “Common Law Marriages.” In approximately 14 states and the District of Columbia, Common Law Marriage is a possibility and is as good as a marriage license. If you live in one of the states listed below and you “hold yourself out to be married” (by telling the community you are married, calling each other husband and wife, using the same last name, filing joint income tax returns, etc.), you can have a common law marriage. Common law marriage makes you a legally married couple in every way, even though you never obtained a marriage license. If you choose to end your relationship, you must get a divorce, even though you never had a wedding. Legally, common law married couples must follow all the same rules as “regular” married couples. These are the following States that allow for Common Law Marriage: Alabama, Colorado, Georgia (if created before 1/1/97), Idaho (if created before 1/1/96), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if created before 10/10/91) Oklahoma (possibly only if created before 11/1/98), Pennsylvania (if created before 1/1/05), Rhode Island, South Carolina, Texas, Utah, Washington, D.C.

But Florida DOES NOT recognize Common Law Marriage!!!

The way around not being married but having “marital rights” is to have a Cohabitation Agreement, which essentially provides contractual rights to the parties without the need for a marriage license. That contract spells out the financial obligations and ramifications to the parties if they should split-up. These contracts have been tested in Florida courts and have been found to be valid and enforceable. Florida “case law” states the following: Agreements between unmarried parties may be enforced provided there is valid and lawful consideration apart from any express or implied agreement regarding sexual relations. See Stevens v. Muse, 562 So.2d 852, 853 (Fla. 4th DCA 1990), holding agreements between unmarried cohabitants were not void as to public policy;
Posik v. Layton, 695 So.2d 759 (Fla. 5th DCA 1997), holding that cohabitation agreement between unmarried, homosexual adults was enforceable under contract law. An oral agreement between cohabiting parties, if proved, is enforceable.
Crossen v. Feldman, 673 So.2d 903 (Fla. 2d DCA 1996); and
Poe v. Levy’s Estate 411 So.2d 253, (Fla. 4th DCA 1982), holding that a constructive trust in certain property due to confidential relationship between plaintiff and decedent stated causes of action which were not against public policy.

Without cohabitation agreement in Florida, there is just not much that can be done. And yes, it is frustrating and sad to spend that much time in a relationship with nothing to show for it. That is why I recommend marriage in the State of Florida, or at the least, have a co-habitation agreement if the two of you decide against legal marriage.