Cohabitation in Florida
A cohabiting couple is one who has chosen to live together before, or without, marrying. Many people think there is no difference between marriage and cohabitation, but legally, the two arrangements are very different. While marriage in Florida gives rise to a number of rights and responsibilities, cohabitation grants no legal rights or responsibilities.
Cohabitation itself is not illegal in Florida nor are common-law marriages. Common law marriages entail two people living together and holding themselves out to others as married under the concept of "for better or worse." Common-law marriages in Florida are no longer recognized. In fact, Florida made the declaration of common law marriages void in 1968 and this ban applies to all Florida counties and municipalities. However, if a person has established a common law marriage in a different state before marrying in Florida, that person may enter into a common law marriage and it will respect, so long as it meets the requirements of the state in which the original marriage occurred.
Common law marriages and cohabitation are two very different things. While common law marriages have been abolished in Florida , a cohabiting arrangement is very much legal in the state. There is a lot of ambiguity in Florida law about unmarried couples or cohabitation. Many questions arise as to the disposition of assets after a separation or dissolution of a cohabiting relationship. The outcome is not poor for people in cohabitating relationships nor is it favorable as a rule. It really depends on the facts of each case.
Judges have often had to decide cases of cohabitation where the outcome of the case depends on the intent of the parties. One party in a cohabiting relationship may be seeking to establish an equitable claim in the property owned by the other party. Florida’s Courts are particularly compassionate toward cohabiting defendants whose ex-live-in partners demand settlement for what they have considered to be a co-ownership of property.
One legal note: If a couple is considering entering a domestic partnership—and many people are due to the legal advantages it grants over traditional cohabitation — they should ensure they understand the laws in their respective states. Most states do not recognize the legal status of common-law relationships, but a few jurisdictions do. In the end, it pays to be informed whether you are planning on living together with or without the abstract concept of marriage.
Unmarried Couples and the Law
The legal implications of an unmarried couple living together in Florida are important to consider before entering into such an arrangement. While Florida has no specific laws prohibiting or regulating cohabitation, unmarried couples often fall under the court’s analysis commonly known as "palimony".
Palimony, short for "palace matrimoniale", is a right or claim to financial support one partner can have against the other. Generally, this right arises in a palimony action or case brought by one partner against the other for financial support. See e.g. (Livaich v. Livaich, 448 So.2d 1068 (Fla. 3d DCA 1984) (wife remained entitled to financial support from husband despite wife’s decision to move out of marital residence)).
Under Florida law, there are three possible "palimony" claims between unmarried partners: (1) contract, (2) quasi-contract, and (3) equitable estoppel. In short, a contract or quasi-contract is an implied contract between partners living together. Equitable estoppel invokes the doctrine that one can be precluded (estopped) from denying what is obviously implied in an arrangement between partners.
Florida Courts have held that, absent a written contract governing the relationship, unmarried partners are barred from contending property acquired during the relationship through the joint efforts of both partners is subject to equitable distribution like a divorce proceeding. See e.g. (Holland v. Hamilton, 410 So.2d 925 (Fla. 5th DCA 1981).
Further, even if one partner has acquired property or assets individually, as long as both partners contributed effort or labor in acquiring the jointly held assets, through their joint efforts the property is equitably distributed between both partners. See e.g. (Hoffman v. Schaaf, 405 So.2d 494 (Fla. 4th DCA 1981; Freeman v. Freeman, 283 So.2d 44 (Fla. 1973)). Additionally, as the court held in Baker v. Baker, 415 So.2d 1334 (Fla. 5th DCA 1982), "equitable estoppel applies to the situation of a cohabitant, who upon reliance of promises of a partner, obtains a divorce and moves in with the partner who made the said promise."
Therefore, when entering into a cohabitant relationship, there are legal implications and consequences that should be considered. One such consideration is creating a palimony agreement (or cohabitation agreement).
Property Division Rights for Unmarried Couples
Florida Law: Rights of Unmarried Couples Living Together
Generally, if you acquire property before you begin living together with your partner and do not take steps to change the legal title of that property to include your partner, then the property belongs to you alone. Even if you title the property in both your names, you still have no obligation to share it with your partner unless you voluntarily agree to do so. However, a less certain situation arises when title to property is in both partner’s names. A court proceeding may be necessary to resolve the issue. You and your partner may have agreed to combine incomes to purchase jointly-titled real estate. If the relationship ends, one partner may have a legal right to payment from the other to divide the asset equitably. If you paid more than half the purchase price, this is likely to result in a credit to you, but if you equally divided the purchase price to buy the property together, the rules are less clear. A 1992 Florida law says that anyone who pays for an asset (such as a home) that is not married to the person who lives there has no right to keep that person from living there. Note, however, that this law does not define the word "married." The statute’s provisions would apply, for example, to LGBT couples, those who had merely discussed getting married, or those with an incomplete divorce. An individual who joint-titles property with their unmarried partner does not create a tenancy by the entirety, nor a presumption of equal contribution to acquisition – neither joint preferences in mortgage payments, taxes, utilities, upkeep, or costs. If one partner pays all property taxes and mortgage interest, this may be deemed a gift to the other and this may not be imposed by a court of equity. If the conveyance was ostensibly for one dollar and other nominal considerations only, Florida courts may presume that the grantee intended to return a half-interest to his/her former spouse (Bernhardt v. Bernhardt, 105 So. 2d 649 [Fla. 3d DCA 1958]). When the parties purchase property in return for property held jointly with right of survivorship, Florida courts treat it as though it had been paid for with legally-nonmarital property. The right of survivorship does not convert the property into joint marital property (Barnes v. Barnes, 690 So. 2d 1344 [Fla. 4th DCA 1997]). When dividing property at the dissolution of a non-marital relationship between partners, courts have held that equitable considerations should govern. If a result would be inequitable, courts may invoke "equitable principles based on common-sense notions of ordinary fairness" (Woods v. Woods, 459 So. 2d 1179 [Fla. 5th DCA 1984]).
Financial Obligations and Arrangements
In Florida, financial responsibilities and agreements between unmarried partners living together are often governed by a cohabitation agreement. A cohabitation agreement can be entered into to set forth how the parties will handle their money during the marriage. It also sets forth how the parties will handle any future disputes. A court will enforce any terms of the cohabitation agreement unless it finds that the agreement is unconscionable, which in the court’s opinion means so unfair that no reasonable person would have agreed to the terms.
In a cohabitation agreement, the parties may agree how they will live with one another and financially support one another. The cohabitation agreement may address in what bank accounts to maintain funds and how those accounts will be used. Also, the parties may agree as to how much each party will contribute to the various bills and expenses. The parties may also agree to how property interests will be divided or handled in the event of a dissolution of the relationship.
Children of Unmarried Parents: Custody and Support
Child custody and support for unmarried parents is a complex issue in Florida. The court will consider what is in the best interest of the child. Florida courts use the "best interest of the child" standard when determining custody, which is known as parental responsibility.
In Florida, there are two kinds of parental responsibility: Shared Parental Responsibility and Sole parental Responsibility. Shared parental responsibility means that both parents retain shared responsibility for the child, even if a majority of the parenting tasks fall to one parent such as primary residential parent. This does not mean that each parent has equal parenting time or that time-sharing is equal, it means that both parents are equally responsible for making decisions for the child.
It is important to note that Shared parental responsibility DOES mean that there should NOT be any kind of major decision made by one parent without the consent or agreement of the other parent; major decisions include medical, educational and religious choices.
Sole parental responsibility is not preferred by the Florida courts. In cases of extreme domestic violence or abuse, the court may order sole parental responsibility. Sole parental responsibility means that one parent has the full right and responsibility to make decisions about the child’s life. However, with sole parental responsibility, the court may still order that there be time-sharing with the other parent . Sole parental responsibility does NOT absolve the non-residential parent from time-sharing.
The Florida courts also look at time-sharing. Time-sharing is not equal to shared parental responsibility. It is the actual hours and days that each parent has their child. When a court orders shared parental responsibility, it will also include a time-sharing schedule. The time-sharing schedule is just that: a schedule that divides the time between each parent. It should be regularly scheduled times and not just a free for all. Time-sharing can be any variation that gives each parent an opportunity to bond with their child.
When parents share parental responsibility, it creates a greater level of parental responsibility but it does not mean that the parents are living under the same roof. Parental responsibility is focused on the decisions made regarding the child but does not address parenting (time-sharing) schedule.
Child support PT Money will be determined in accordance with the Florida Child Support Guidelines Worksheet A or Worksheet B. The guidelines are based on the combined net monthly income of both parents. Once the monthly income has been determined, the court then uses the child support guidelines to determine the minimum amount of child support that can be paid by the obligor (the parent who is ordered to pay child support). We will address child support further in a separate article.
Health Care and Medical Decisions
Many unmarried couples living together overlook one or both of these documents in setting up their affairs. You need to think now about what you would want to happen to you if you were unable to make decisions for yourself because of incapacity (for example, mentally incapacitated due to Alzheimer’s, stroke, coma, etc.). There is also the issue of healthcare insurance for severe illnesses. If you have a durable power of attorney giving a partner the right to make health care decisions for you upon your incapacity and you have health care insurance coverage, you can avoid a lot of unpleasantness between you and your health care insurance carrier. You may want to give the ability to make decisions for a less imminent period, such as during a medical emergency but while still mentally competent.
In most situations, a partner or spouse will be the person in the best position to make good decisions in a medical emergency. If you have provided advance written notice with your healthcare provider and signed a general durable power of attorney naming him or her as your proxy for healthcare decisions, you will find working with your healthcare provider easy. You should send copies of these documents to your healthcare provider and carry copies with you at all times. It is important to assure that your healthcare provider has these copies in your medical file so that it can act immediately on your behalf in a medical emergency.
Domestic Violence Laws
Domestic Violence Protections are available to individuals in a nonmarried relationship who reside together. Just because individuals are not married does not mean that the domestic violence laws of Florida do not apply. The Florida Bar has issued a straightforward pamphlet with information on Domestic Violence and your legal rights.
I have found that one of the biggest misconceptions is that if you do not want to live with your spouse anymore, you cannot get a restraining order or file for divorce.
This is false. In Florida, in order to receive a domestic violence injunction to protect you from an individual, the person must be one of the following: If you have a problem with someone who does not fall into these categories, consider contacting a civil attorney to see what, if any, options you may have. Even if it is determined that the person who acts violently towards you does not fall within the realm of injunction eligibility, there is a possibility that you may file a domestic relations action against them.
Actions to Take to Safeguard Your Rights
Unmarried couples should always take these steps, especially as they reach important contractual milestones:
Legal Advice: Legal counsel can review your various contracts and agreements to help you understand your rights and obligations. They can proactively help you plan and draft agreements that will ensure your rights are protected.
Documentation: It is extremely important that each unmarried couples keep their respective incomes and expenses separate. Unmarried couples should keep their money in separate accounts. By creating a paper trail showing which assets were acquired during your marriage, you can more easily prove which assets can be split and which should remain separate property.
Pre-emptive Planning: There are some steps you can take right now to protect your rights . If you are unmarried and moving into a single-family home with your partner, you should create a written agreement now stating how the expenses of the home will be shared. This agreement should clearly state how much each person is committing to paying and when payment is due. It should also describe what will happen if one person misses a payment. This contract should also address potential future changes, such as augmentations to the home, changes in income and job loss. These types of pre-emptive agreements can prevent problems from arising later.
When unmarried couples live together, it is critical for best legal protection that each person understands his or her rights and the protections that are available.