Saturday, October 16, 2010

To Marry or Not to Marry -- That is the Question.

Today, more and more people are deciding to live together before marriage.  Many couples live together with no intention of ever marrying.  People frequently ask me: "Is it better to marry or to just live together without legal ties?"  My answer is always the same: "That's a decision that is best left to each couple, after giving the matter careful consideration."  There are pros and cons to each arrangement.  On the one hand, if there is no marriage then there will be no need for a divorce if the couple should ever break up.  On the other hand, the law does afford a married person certain protections, and there are often legal consequences when a relationship ends, even if the cohabiting couple never married.

The longer a couple has lived together, the more "things" they typically acquire.  For instance, a couple may pool their money to buy a home, or a car, or a houseful of furniture.  They may have a joint bank account, or mutual investments.  How are these things divided if and when the relationship ends?  And what happens if the parties can’t agree on a division? 

There is no "common law marriage" in Arizona.  When the cohabitation is over, the concepts of divorce and community property do not apply.  If the couple owns property or bank accounts together – and if they are fighting over them – then they may wind up in a lawsuit, even if they never married.  Rather than using a "community property theory" of division, the Court will likely use a “partnership” theory to divide these assets.  A problem may arise where the parties bought a house together but one of them paid all the mortgage payments with his/her separate income from work.  In a divorce scenario this would be an easy call and the value of the house would be split equally, since income earned by a spouse from employment during the marriage is considered “community property” (and both the husband and wife have an undivided 50% interest in all community property).

Spousal Maintenance is a statutory right that is afforded only to a married person in Arizona.  The parties may have lived together for many years, and one of them might have given up a career to be a homemaker or a stay-at-home parent, but if the parties were never married there is no right to spousal maintenance when the relationship ends.  This could put the non-married, stay-at-home partner in a real bind and make his or her life unnecessarily difficult following the break-up.

When people have children together and then separate, they may still end up in court over the issues of custody, parenting time, and child support.  The court will make custody and parenting time decisions based on the best interests of the children regardless of whether or not the parents are married.  Child support decisions will be made based on the parents’ incomes and the needs of the children, pursuant to the Arizona Child Support Guidelines.  Whether the parents were ever married is not a factor.

If the parents are not married and the father is not on the child’s birth certificate, then before being given the rights of a parent, the father will have to take the extra step of obtaining a paternity order.  Only then can he ask the court for an order spelling out his custody and parenting time rights.

There are valid reasons for deciding to marry, or live together without marrying.  However, given the fact that this is an important decision with long-term consequences, it would be a good idea to consider the legal ramifications before making a final decision.

Gary Frank has practiced Family Law in Arizona for almost thirty years and has handled cases for both married, and unmarried, persons.  Contact us today for a consultation by calling our office at 602-383-3610, or email us through our website at http://www.garyfranklaw.com/.