Utah Law on Cohabitation Explained
The state of Utah does not have a clear definition of cohabitation, but legally it exists as a couple living together without being married. It is a common occurrence, and some interesting decisions are coming down in Utah cohabitation law. While people can still live together legally unmarried, there are some laws that can come into play if the parties end up separating. Cohabitation has several legal implications under Utah law.
The legal definition is important under Utah law because the courts have used it to determine potential sharing of assets and spousal support-like payments upon termination of cohabitation, even though spousal support is different from cohabitation orders in form from spousal support orders. Even though people can live together without being married, they cannot "cloak" their cohabitation as marriage. Cohabitation addresses the intent of two persons to be married or live together and share a household. Cohabitation can be proven by the fact of living together, the conduct of the parties, parties’ references to each other, and whether they hold themselves out as being a married couple.
There is a clear difference between cohabitation and marriage under Utah law. Sex is not a requirement of a cohabitation order, although it is often used as the basis to prove or disprove the existence of cohabitation . There is also a seven-part check list of factors that the courts use to consider to determine if there is cohabitation in the broad sense of the word. The Utah state court in one of their recent decisions held that cohabitation is not limited to when a man and woman live together. Cohabitation can occur with couples of the same sex living together.
While a person can legally cohabitate with another person, the courts are clear that this does not establish, create, or imply a marriage between the parties. Cohabitation creates domestic obligations between the couples akin to those imposed by marriage. Spousal support is not an objective of cohabitation. Cohabitation allows for a way for couples to combine their income to be able to afford housing that they might not otherwise be able to afford alone. Most people want to live in a decent location, in a somewhat nice place. Cohabitation allows for that, and will help those couples establish a sound economic footing. Cohabitation is a good alternative to marriage and completely legal in Utah. Those parties who do not wish to be married and do not care about the legal implications of cohabitation should pursue it rather than marriage. Marriage is permanent, whereas cohabitation can be changed at any time without going through the court system.
Cohabiting Couples’ Legal Rights in Utah
In the State of Utah, no cohabiting couple has a legal designation of couples as spouses do. A cohabiting couple has no legal protections for assets and debts; cohabiting couples have no right of inheritance or to seek an award of alimony. The word "cohabitation" essentially means to live together.
If cohabiting parties purchase any type of property, such as a home, it will be treated as tenants in common and not as joint tenants. If cohabiting parties plan to live together with the financial intention of being equal owners of the property, they must expressly convey their intentions in writing. If the property is owned as tenants in common and one party dies, then the surviving party is not entitled to inherit from the deceased party’s estate under the law, even if the parties intended otherwise.
If the parties go their separate ways, each party is thereafter responsible for their own debts. There is no legal recourse for either party to obtain the other’s payment for what would otherwise qualify as marital debt, such as credit cards, mortgages, and the like.
As a side note, there is an area of Utah law that recognizes a claim for unjust enrichment. In order to receive relief under this theory, the party claiming an unfairness must show the benefit obtained by the other party would be a "illicit ill gotten gain." The law does not require a party to file divorce in order to pursue a claim of unjust enrichment. It is worth noting that the claim is based upon the retention of property that ought to belong to the other party, and not necessarily on the debt each of the parties has regarding the property.
As a preliminary matter, cohabiting parties must consider whether they will each agree to execute a written agreement that describes how the parties will hold their property while living together and if the relationship terminates. Both parties need to agree to the division of property and clarify any alimony rights.
If upon the termination of a cohabiting relationship the parties cannot agree how to divide their property, the division becomes a matter for a judge to decide. When parties cannot agree, a court looks to the intentions of the parties at the time of the purchase. (That is why is always helps to have the marital intentions expressed in writing at the time of the acquisition of property.) In the absence of an expressed intent, the court will presume a tenancy in common.
Cohabitation Agreements Explained
Cohabitation agreements are marital agreements entered into by couples who choose to live together and are not legally married. Although cohabitation agreements may ensure support, protect assets, and provide a measure of security in the event the couple splits, they are often not given the same level of consideration as prenuptial and postnuptial agreements. Cohabitation agreements are entered into prior to a couple residing together as parties to a marriage and typically address support and property control. Without a cohabitation agreement, Utah Courts review whether the parties intended to create a legally enforceable relationship by balancing equities between the parties. General legal principles of unjust enrichment, implied contracts, constructive trusts, and quantum meruit often apply in disputed cases. Cohabitation agreements may provide assurances for a party that does not want to enter into a full-fledged marriage, does not want an intention to marry legally inferred, and desires independent control over legally protected assets.
Cohabitation agreements may be especially beneficial in the following instances: 1.) a party desires to protect assets in the event of a breakup; 2.) a party is concerned that the absence of a marriage license will prevent a Court from considering spousal support and property distribution claims made by the less economically secure party; and/or 3.) a party desires to define a relationship.
Cohabitation and Child Custody in Utah
The previous section examined the potential impact of cohabitation on the housing situation of the custodial parent. The concern that housing stability is good for children has led the state of Utah to require child custody evaluators to interview people who cohabitate with a child’s custodial parent. The courts are increasingly likely to consider a person’s cohabitation an important factor in deciding custody and visitation rights.
Sometimes, a parent who has been granted visitation rights will begin to show up at the custodial parent’s residence with the new partner. Occasionally, the custodial parent may even move into the home of this new partner. In such cases, the non-custodial parent must be aware of their rights and responsibilities.
When considering the effect of cohabitation on custody arrangements, the courts first consider the "best interest of the child." While Utah courts will not often change custody on the basis of the custodial parent’s cohabitation, these courts have sometimes done so.
One potential scenario that could lead to a custody change is an arrangement in which the child has to share a room with the new partner. In such a case, the court might decide that this situation could have a harmful effect on the child’s well-being. For example, a child who is just learning to talk would probably be uncomfortable with an adult he or she does not know entering the room regularly. This has led some courts to reverse previous rulings about custody based on the child being placed in a position of sleeping near an unmarried adult.
In order to be eligible to gain custody, the sexual partner of a custodial parent needs to be more than a trophy in the house. The partner, who is now a step-parent, needs to be more than an occasional visitor. The state requires that someone living in a private home with children should provide the same standard of care as a registered household provider. This person must be a member of Child Care Licensing Services, the same department that oversees daycare providers. Any violations as provided by Utah Cohabitation Law would now be held against a legal parent employing a step-parent as a caretaker.
Evolving Utah Cohabitation Law
As discussed above, the Utah Cohabitation Statute is the law that allows an alimony recipient to reduce or terminate alimony based on their cohabitation with a third party. Courts will generally only terminate alimony if the cohabitation of the recipient has been shown by the spouse paying support to significantly diminished the needs of the recipient spouse.
The history of the Utah Cohabitation Statute is actually fairly interesting. The law was enacted in Utah in 1987 to broaden the narrow definitions of cohabitation then used by the courts. Before the statute, cohabitation was limited to showing the third party with whom the payee was living subsumed the role once held by the payor spouse. The law, as previously written, also generally required a showing that the relationship was sexual.
In 2007, the Utah Cohabitation Statute was amended to illustrate that the need for the ex-spouse to make monetary demands against the spouse paying alimony was not an impediment to a finding of cohabitation. In other words, the payor spouse was not required to prove that the ex-spouse was actually benefiting financially as a result of cohabitation, but that the cohabitation existed .
There has been lots of litigation since 2007 regarding the meaning and application of the amended Utah Cohabitation Statute. This litigation and the application of the previous and current iteration of the cohabitation law have created a body of law that can be used to apply the Utah Cohabitation Statute to any situation. There is no set method to determine whether cohabitation exists, rather the situation is reviewed in totality to see if a preponderance of the evidence shows the other spouse is cohabitating with a third party.
In the past five years, there have been some fascinating cases decided by the court related to cohabitation. In 2015, the Utah Court of Appeals determined that cohabitation cannot be shown if the third party is supportive and protective of the ex-spouse’s needs, but there is no benefit to the existence of the relationship towards the other set of individuals. The Court in Paz, determined support and protection of the ex-spouse was insufficient to show cohabitation exists.
In 2016, the Utah Supreme Court determined that success in business, although sometimes requires the participation of one’s spouse, and does not constitute cohabitation as opposed to successful business development that did not involve a contribution by an ex-spouse.
Cohabitation Misconceptions in Utah
There are many commonly held myths on the subject of cohabitation in Utah. Let’s take a closer look at some of the most common cohabitation myths:
Common Law Marriage
Living together can create a "common law" marriage, which is recognized under Utah law. The reality is that Utah no longer recognizes common law marriages and that you must have a legally valid marriage certificate to be married under Utah state law. The cohabitation myth surrounding common law marriage in Utah has been debunked since 1987.
Marriage Licenses for Cohabitation
If a couple enters into a cohabitation relationship, neither party may have to pay alimony. They also may not be required to file joint taxes. Filing a joint return, however, is not illegal. A cohabitation myth held by many is that if you and your partner hold things in joint possession or file joint taxes, you can be fined or jailed. However, what the Utah Divorce Court is concerned with are any assets that were obtained by the efforts and combined property of the parties during the relationship.
De Facto Spousal Rights
Putting a girlfriend’s name on a sports car so that she can drive it without a Utah driver’s license is not conscionable if the intention is to give the car to the girlfriend when he is finished with it. Additionally, making a girlfriend the sole beneficiary of a life insurance policy is unethical if it is being done with the intention of getting back at an ex-spouse. Both of these scenarios would violate Utah law, as they both lead the beneficiary to rely on these gifts.
Permanent Alimony
Cohabitation can occur with or without a marriage license. Couples can enter into marriage licenses in some states and then move to Utah without the expressed intent of forming a common law marriage. If a couple goes through the legal process to finalize their divorce and then chooses to cohabitate, either without a marriage license or with a permit from another state, they are not required to pay spousal support or alimony. The status of a married couple, however, can affect the duration of alimony.
Day Care
As many of these myths illustrate, many of the debates around cohabitation are not about rights but about financial obligations. As a result, the day care expenses of children can be split proportionately between the parents and the partners of the person who is responsible for the child. This can make it difficult for a child to choose whether he or she is better off with both parents or in the sole care of one parent. When parents share joint parenting time, there is less opportunity to create a primary residence where the child or children can get the care they need. Many cohabitation myths have prevailed due to guilt and/or denial on the part of the parties involved in the relationship. For better or worse, there is no escaping the need to provide for your children and to be fiscally responsible.
Consulting an Attorney Regarding Cohabitation
Cohabitation can be a complex issue for unmarried couples, especially when it comes to financial rights and obligations. Seeking legal advice from an attorney with experience in family law and cohabitation can help you navigate the intricacies of your situation and protect your interests.
One significant area where seeking legal advice is crucial is in the drafting of cohabitation agreements. A well-crafted cohabitation agreement can help you define the rights and obligations of each partner in various areas, such as property ownership, spousal support in the event of a separation, or financial contributions to the relationship . Without an agreement, you may find yourself in a difficult position in the event of a separation or death, as you may have no legal recourse against any claims made by your partner or a third party.
If you are considering living with your boyfriend or girlfriend in Utah, you should consult with a family law attorney who has experience with cohabitation issues. An attorney can provide you with guidance on what rights and options you have under Utah law, both before and after the decision to cohabit. This may include information on how you can protect your assets or preserve your rights in the event of a future separation or death.
Consulting with a family law attorney before entering into a cohabitation arrangement enables you to make an informed decision that protects your interests and prepares you for the future.
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