Divorce without marriage

As the number of co-habiting couples skyrockets, a new legal problem has come to the fore:   What to do when the couples split up?  From an article in the Washington Post:

A study by the Pew Research Center found that 39 percent of Americans think marriage is becoming obsolete. But it still takes a marriage (or some other legally binding agreement) to get a divorce. And as the number of couples choosing to live together rather than marry has increased drastically, so have the spats over their splits. The American Academy of Matrimonial Lawyers found that almost half of its 1,600 members are seeing an increase in court battles between cohabiting couples. Nearly 40 percent of those lawyers said they’ve seen an increase in demand for cohabitation agreements — the equivalent of a prenup, sans wedding ring.

“It’s pretty heartbreaking,” Luxenberg says. “People don’t have rights unless they have the title — their name is on a piece of property or a bank account or something like that.”

Luxenberg recalls one client who lived with her partner for 20 years. They’d had a child and built a home together. The woman’s income was about $50,000, Luxenberg says, and her boyfriend’s was “six or seven times that.” When the couple split, the woman hired Luxenberg to see what recourse she had. The answer: not much.

There would be child support, “but she didn’t get any of his pension benefits or any of his profit sharing. And she wasn’t going to get alimony,” Luxenberg says. “I don’t think people think about those kinds of issues.” . . .

A recent census report found that 7.5 million heterosexual couples lived together in 2010, up 13 percent from 2009. The report suggests that some of the shift may be attributed to the economy — more couples than in the previous year reported at least one party being unemployed. (An Onion TV headline put it this way: “Nation’s Girlfriends Unveil New Economic Plan: ‘Let’s Move In Together.’ ”)

The numbers have been climbing over the past decade as cohabitation has become more socially acceptable.

Brad Wilcox, director of the National Marriage Project, an organization that promotes marriage, worries about the effect this has on children.

The good news, he says, is that divorces among parents with children have returned to levels not seen since the 1960s. Of couples who married in the early 1960s, 23 percent divorced before their first child turned 10. The rate peaked at slightly more than 27 percent in the late 1970s. By the mid-1990s, the rate dropped to just above 23 percent.

But a recent report Wilcox wrote, titled “Why Marriage Matters,” concludes that American families are less stable overall, in large part because couples are choosing cohabitation over marriage. Today, 24 percent of U.S. children are born to cohabiting couples, according to the report, and an additional 20 percent will live in a cohabiting household at some point in their childhood.

And 65 percent of children born to cohabiting parents will experience a parental breakup by the time they turn 12, compared with 24 percent of kids born to married parents.

“The more commitment people have to a relationship, typically the better they’ll do, the happier they are,” Wilson says.

This generation’s preference for cohabitation, he adds, may be a backlash against their parents’ propensity for divorce. But not getting married doesn’t protect couples who live together from heartache when the relationship falls apart.

The article goes on to give a number of sad stories.  But isn’t the point of just living together instead of getting married so that no one gets “tied down”?  Don’t a lot of people avoid getting married precisely so as to free themselves from the cost of divorce, alimony, sharing of assets, and the like?   If a couple isn’t married, what claim can they possibly have on each other’s property?   I don’t see how cohabiting couples have any grounds for complaining.  Of course the relationship isn’t permanent.  Of course you don’t have any kind of legal ties.  I thought that was the point!

Maybe we could restore the time-honored option of common law marriage.  If you live together for longer than a specified time, then you are married, whether you have a ceremony or whether you want to be or not, with all of the rights and responsibilities thereof!

HT:  Frank Sonnek

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • http://snafman.blogspot.com Snafu

    “Maybe we could restore the time-honored option of common law marriage. If you live together for longer than a specified time, then you are married, whether you have a ceremony or whether you want to be or not, with all of the rights and responsibilities thereof!”

    Dr.Veith, did you just invent fixed-term cohabitation? :)

    I mean, with the current mindset of our culture(s), that is what the common law marriage would result in, don’t you think?

  • http://snafman.blogspot.com Snafu

    “Maybe we could restore the time-honored option of common law marriage. If you live together for longer than a specified time, then you are married, whether you have a ceremony or whether you want to be or not, with all of the rights and responsibilities thereof!”

    Dr.Veith, did you just invent fixed-term cohabitation? :)

    I mean, with the current mindset of our culture(s), that is what the common law marriage would result in, don’t you think?

  • Pingback: Divorce without marriage | Cranach: The Blog of Veith | Marriage is Unique for A Reason

  • Pingback: Divorce without marriage | Cranach: The Blog of Veith | Marriage is Unique for A Reason

  • James Sarver

    “If you live together for longer than a specified time, then you are married, whether you have a ceremony or whether you want to be or not, with all of the rights and responsibilities thereof!”

    I think the idea of common law marriage includes (as all marriages) an element of consent, as evidenced by the requirement that the couple somehow publicly express that they are married. I am not aware of any state law that excludes this element. Not many states still recognize common law marriage (nine I think). That is not because it doesn’t exist everywhere, but because it is a pain to make the legal determination. Common law marriage statutes recognize marriages, they do not create marriages.

  • James Sarver

    “If you live together for longer than a specified time, then you are married, whether you have a ceremony or whether you want to be or not, with all of the rights and responsibilities thereof!”

    I think the idea of common law marriage includes (as all marriages) an element of consent, as evidenced by the requirement that the couple somehow publicly express that they are married. I am not aware of any state law that excludes this element. Not many states still recognize common law marriage (nine I think). That is not because it doesn’t exist everywhere, but because it is a pain to make the legal determination. Common law marriage statutes recognize marriages, they do not create marriages.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    Without a contract, there can be no breach of contract. Verbal contracts are as binding as written contracts, but much harder to establish as fact. One party need only claim he never entered into the contract. Anyway, the state may choose to recognize cohabitation as contractual or not. As has been noted, it is a pain, so most don’t bother.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    Without a contract, there can be no breach of contract. Verbal contracts are as binding as written contracts, but much harder to establish as fact. One party need only claim he never entered into the contract. Anyway, the state may choose to recognize cohabitation as contractual or not. As has been noted, it is a pain, so most don’t bother.

  • http://www.matthewcochran.net/blog Matt Cochran

    The idea of cohabiting instead of marrying is so you don’t get tied down, not so that your partner doesn’t. Making sure you don’t fully give yourself to your partner is an inherently selfish arrangement. Nevertheless, while cohabiting individuals don’t want to treat their partners like spouses, but they still want to be treated like spouses themselves–they’re wired to want that.

  • http://www.matthewcochran.net/blog Matt Cochran

    The idea of cohabiting instead of marrying is so you don’t get tied down, not so that your partner doesn’t. Making sure you don’t fully give yourself to your partner is an inherently selfish arrangement. Nevertheless, while cohabiting individuals don’t want to treat their partners like spouses, but they still want to be treated like spouses themselves–they’re wired to want that.

  • kerner

    Contracts can be enterted into by conduct as well as by written or verbal expression. If one’s conduct implies right and responsibilities, then tose rights and responsibilities are enforceable. Frankly, I am becoming more prone to favor the “common law” option. Don’t we Christians preach that the mere sexual act creates “one flesh”?

    If that is true (i.e. that having sex with someone creates a bond that implies responsibility to the other person) why not simply establish a legal principle that requires those who have gone far enough down that road (having sex and co-habitating for a given length of time, especially if children are produced) to treat each other as spouses, with or without a ceremony? If a couple’s behavior implies commitment, then maybe commitment is what they should get?

  • kerner

    Contracts can be enterted into by conduct as well as by written or verbal expression. If one’s conduct implies right and responsibilities, then tose rights and responsibilities are enforceable. Frankly, I am becoming more prone to favor the “common law” option. Don’t we Christians preach that the mere sexual act creates “one flesh”?

    If that is true (i.e. that having sex with someone creates a bond that implies responsibility to the other person) why not simply establish a legal principle that requires those who have gone far enough down that road (having sex and co-habitating for a given length of time, especially if children are produced) to treat each other as spouses, with or without a ceremony? If a couple’s behavior implies commitment, then maybe commitment is what they should get?

  • kerner

    Oh, and it may be a pain to imply a marriage from conduct, but it’s an even bigger pain to try to unscramble co-mingled property rights and family responsibilities in court without an established body of law for guidance. I’ve had cases involving the break up of unmarried couples. Believe me, the lawyers, and even the parties, ended up wishing they could have gone through a normal divorce; so uncertain and expensive was the process they actually had to go through.

  • kerner

    Oh, and it may be a pain to imply a marriage from conduct, but it’s an even bigger pain to try to unscramble co-mingled property rights and family responsibilities in court without an established body of law for guidance. I’ve had cases involving the break up of unmarried couples. Believe me, the lawyers, and even the parties, ended up wishing they could have gone through a normal divorce; so uncertain and expensive was the process they actually had to go through.

  • Michael

    One thing no one is bringing up is how unfair and financially devastating a divorce can be to the man. Men are right to be wary to enter into marriage. Someone would feel really bad about themselves if they lost $10000 gambling in Las Vegas, but it’s nothing for a man to lose far more money than that in a divorce.

  • Michael

    One thing no one is bringing up is how unfair and financially devastating a divorce can be to the man. Men are right to be wary to enter into marriage. Someone would feel really bad about themselves if they lost $10000 gambling in Las Vegas, but it’s nothing for a man to lose far more money than that in a divorce.

  • kerner

    Then I guess it pays to be careful with whom you have sex. And believe me, if you paid most wives hourly for all the stuff they do, it would cost you a whole lot more than $10,000.00.

  • kerner

    Then I guess it pays to be careful with whom you have sex. And believe me, if you paid most wives hourly for all the stuff they do, it would cost you a whole lot more than $10,000.00.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    @8

    I think Michael may be referring to the Eat, Love, Pray kind of faithless wife that certainly is not worth the cost. Also, if wives had to pay their husbands for all they do, they couldn’t afford it either.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    @8

    I think Michael may be referring to the Eat, Love, Pray kind of faithless wife that certainly is not worth the cost. Also, if wives had to pay their husbands for all they do, they couldn’t afford it either.

  • kerner

    “Also, if wives had to pay their husbands for all they do, they couldn’t afford it either.”

    True that.

    But the point is that marriage is, among other things, a contract. A partnership. Both sides put everything in, and if the partners dissolve the partnership, each side takes out half. What spouses (most often husbands, but wives too) are complaining about when they say they “lost money” in the divorce, is they believe they made a bad bargain. The investment the other person made (i.e. what the complainer got from him or her), they believe, wasn’t worth what it cost when the partnership broke up.

    While the complainer may have a point, the fact is they made the bargain. The complainer invested in the other person, and thought that he/she was worth it at the time. It’s basically buyer’s remorse.

    This is why, until very recently, nobody would have dreamed of letting a teen or a twenty-something make that kind of a deal on his or her own. The family elders always took at least some responsibility for that.

  • kerner

    “Also, if wives had to pay their husbands for all they do, they couldn’t afford it either.”

    True that.

    But the point is that marriage is, among other things, a contract. A partnership. Both sides put everything in, and if the partners dissolve the partnership, each side takes out half. What spouses (most often husbands, but wives too) are complaining about when they say they “lost money” in the divorce, is they believe they made a bad bargain. The investment the other person made (i.e. what the complainer got from him or her), they believe, wasn’t worth what it cost when the partnership broke up.

    While the complainer may have a point, the fact is they made the bargain. The complainer invested in the other person, and thought that he/she was worth it at the time. It’s basically buyer’s remorse.

    This is why, until very recently, nobody would have dreamed of letting a teen or a twenty-something make that kind of a deal on his or her own. The family elders always took at least some responsibility for that.

  • Geremy

    My niece is going through a break-up now for about a month. It is just as ugly as a divorce, especially since they put everything they bought together in both names. One had a job with money and no benefits, the other had a job with little money and benefits, which she had especially for their son. Now, it’s all a big mess. And it all does come down to selfishness. Neither wanted to get married, but now they’re both in trouble because neither one can afford to be on their own, and their son is getting lost in the middle. It breaks my heart that people get themselves into these messes.

  • Geremy

    My niece is going through a break-up now for about a month. It is just as ugly as a divorce, especially since they put everything they bought together in both names. One had a job with money and no benefits, the other had a job with little money and benefits, which she had especially for their son. Now, it’s all a big mess. And it all does come down to selfishness. Neither wanted to get married, but now they’re both in trouble because neither one can afford to be on their own, and their son is getting lost in the middle. It breaks my heart that people get themselves into these messes.

  • http://www.matthewcochran.net/blog Matt Cochran

    Kerner @ 10,

    One of the problems with that analysis is that anyone initiating a divorce is by definition not putting everything in. In terminating the contract they are violating it.

    Even if the were analysis were adequate, however, it would just mean that marriage is a fundamentally bad contract for virtually all men given that most divorces are initiated by women and the family courts are entirely biased against husbands. The solution to such prevalent buyer’s remorse is to not buy the product in the first place. At that point, marriage is analogous to cocaine. Some people might enjoy it, but the only wise course of action is to just say no.

    And when it comes down to it, marriage is a bad contract–extremely bad. But that doesn’t mean it’s a bad thing. Just like a Lexus is an absolutely terrible bicycle, but not necessarily a bad car. This, among other reasons, is why “contract” is an entirely inappropriate concept for categorizing marriage.

  • http://www.matthewcochran.net/blog Matt Cochran

    Kerner @ 10,

    One of the problems with that analysis is that anyone initiating a divorce is by definition not putting everything in. In terminating the contract they are violating it.

    Even if the were analysis were adequate, however, it would just mean that marriage is a fundamentally bad contract for virtually all men given that most divorces are initiated by women and the family courts are entirely biased against husbands. The solution to such prevalent buyer’s remorse is to not buy the product in the first place. At that point, marriage is analogous to cocaine. Some people might enjoy it, but the only wise course of action is to just say no.

    And when it comes down to it, marriage is a bad contract–extremely bad. But that doesn’t mean it’s a bad thing. Just like a Lexus is an absolutely terrible bicycle, but not necessarily a bad car. This, among other reasons, is why “contract” is an entirely inappropriate concept for categorizing marriage.

  • kerner

    Even if the were analysis were adequate, however, it would just mean that marriage is a fundamentally bad contract for virtually all men given that most divorces are initiated by women and the family courts are entirely biased against husbands. The solution to such prevalent buyer’s remorse is to not buy the product in the first place. At that point, marriage is analogous to cocaine. Some people might enjoy it, but the only wise course of action is to just say no.,

    I don’t agree, on a number of levels. Generally, partnerships can be dissolved. The one’s that stay together are the ones in which both partners continue to perceive a mutual benefit to staying together. I know you are saying that you regarded this particular partnership contract as unbreakable, except narrowly limited cause, but that is no longer the law in any state. Therefore, prospective spouses who want to be married for life would do well to consider their ability to maintain a mutually beneficial partnership going in. In my opinion, few people take that consideration seriously enough. There is way too much emphasis on instant gratification. Frequenly both parties are ignorant of what the other wants or needs.

    I’m not sure what you mean by courts being biased towards women. Financially, men tend to get the better result. I don’t have a source to quote at the moment, but I rember reading that divorced men are statistically much better off financially within 5 years after the divorce, and this has been my anecdotal experience.

    There used to be an assumed duty for a man to support his ex-wife as well as his children, but that has become really rare in the long term. At least in Wisconsin.

    The possible variations of ways in which you might feel the legal system is biased against you are too many for me to discuss blindly. Could you give me some examples?

  • kerner

    Even if the were analysis were adequate, however, it would just mean that marriage is a fundamentally bad contract for virtually all men given that most divorces are initiated by women and the family courts are entirely biased against husbands. The solution to such prevalent buyer’s remorse is to not buy the product in the first place. At that point, marriage is analogous to cocaine. Some people might enjoy it, but the only wise course of action is to just say no.,

    I don’t agree, on a number of levels. Generally, partnerships can be dissolved. The one’s that stay together are the ones in which both partners continue to perceive a mutual benefit to staying together. I know you are saying that you regarded this particular partnership contract as unbreakable, except narrowly limited cause, but that is no longer the law in any state. Therefore, prospective spouses who want to be married for life would do well to consider their ability to maintain a mutually beneficial partnership going in. In my opinion, few people take that consideration seriously enough. There is way too much emphasis on instant gratification. Frequenly both parties are ignorant of what the other wants or needs.

    I’m not sure what you mean by courts being biased towards women. Financially, men tend to get the better result. I don’t have a source to quote at the moment, but I rember reading that divorced men are statistically much better off financially within 5 years after the divorce, and this has been my anecdotal experience.

    There used to be an assumed duty for a man to support his ex-wife as well as his children, but that has become really rare in the long term. At least in Wisconsin.

    The possible variations of ways in which you might feel the legal system is biased against you are too many for me to discuss blindly. Could you give me some examples?

  • Gary

    I understand people who claim marriage is obsolete. In the end I don’t agree, but I see how they might arrive at such a conclusion. And to dismiss the influences at work on the institution as nothing more than unbridled selfishness is to miss an important point that marriage is no longer serving exactly the same purpose it has for all of human history leading up to today.

  • Gary

    I understand people who claim marriage is obsolete. In the end I don’t agree, but I see how they might arrive at such a conclusion. And to dismiss the influences at work on the institution as nothing more than unbridled selfishness is to miss an important point that marriage is no longer serving exactly the same purpose it has for all of human history leading up to today.

  • http://palmsundays@blogspot.com Juan

    My wife has coined a term to describe when a couple who has been shacking up decides to break up and has to divide the lease, DVD collection, dogs and children:

    “Shack down”

  • http://palmsundays@blogspot.com Juan

    My wife has coined a term to describe when a couple who has been shacking up decides to break up and has to divide the lease, DVD collection, dogs and children:

    “Shack down”


CLOSE | X

HIDE | X