In recent years, Americans have increasingly lived in family-like relationships that have not been ratified by the traditional formalities of marriage or relationships which the state refuses to recognize as the equivalent of a marital relationship such as:

  • heterosexual couples who live together unmarried
  • homosexual couples whose unions are not recognized as marriages by the state, even where that status is sought

As these non-traditional situations have become more common, courts dealing with family law issues have begun to address some of the problems arising out of such relationships resembling those of married families.

Determining Parentage

Rights of custody, visitation, and child support are not generally affected by the marital status of the parents of the child.  Thus, the most important question with regard to children in non-traditional relationships is determining who in that relationship are considered the parents of the children.

Until relatively recently, it was commonly accepted that a child could have no more than two parents and that, if there were two, those parents be of opposite gender. This poses no problem when a child is born to a heterosexual couple.

However, where the child is not the biological child of one of the couple, the presumption of parentage that arises in marriage does not apply, and the genetically unrelated parent may be refused parental status, despite the intentions of the parties. Similar issues have arisen where the child is born to a homosexual couple and is, by definition, not their joint biological child. Additionally, some courts have been unwilling to allow “stepparent adoption” by a homosexual partner. Recently, a number of states have allowed such adoptions, recognizing that the best interests of the child are often served by full legal incorporation into a loving family, regardless of the family’s sexual orientation.

Property Distribution and Support

Issues of property distribution and interpersonal support in the non-marital family are more difficult. At common law, only husband and wife or parent and child had obligations of mutual support. Non-married adults, no matter how long they had cohabited, had no claim on each other in this regard. Even express agreements for mutual support were traditionally refused enforcement by the courts. Agreements like this were seen as being based on “illegal consideration” and sexual access, the legal equivalent of prostitution.

Decisions such as Marvin v Marvin, involving the actor Lee Marvin, began to change the attitude of courts toward agreements between individuals in non-traditional relationships. Today, courts are increasingly willing to enforce express agreements for mutual support or for one cohabitant to support the other. Additionally, courts are more willing to imply the existence of such an agreement from the conduct of the parties, such as sharing of expenses or voluntary provision of assistance during the cohabitation period. While this presumption can be rebutted by evidence that there was no such intention, the burden is shifted from the person claiming support to the potential supporter in such cases. Thus, in at least some cases, the obligation of support may extend beyond the period of cohabitation, although the courts commonly award a lump sum judgment for the current value of the support, rather than the period payments common in divorce-spousal support cases.

Similarly, there was at common law no presumption of any intent to share ownership of property between cohabitants. An individual who had lived with another for an extended period of time had no claim on the assets that the other had brought into the relationship, unless an express gift of the particular asset could be found. Recently, a number of courts have begun to view long-term cohabitation relationships as the equivalent of business partnerships, and to assume that all assets in common use were intended to by held jointly rather than retain their status as separate property. Following the break up of the relationship, this theory allows the courts to divide the property amongst the partners, theoretically in accordance with their respective ownership interests in the partnership, but realistically in equal shares. As with the support issue, clear evidence of lack of intention to share ownership of the assets will defeat such a claim, but this approach has the effect of shifting the burden of proof from the claimant of an interest to the respondent.

Contractual Agreements and Domestic Violence

Other remedies existing for non-marital couples rest largely in the areas of express contractual agreements and the domestic violence laws. Just as couples are in most states now free to agree about obligations of support, they are also free to agree about other terms of their relationship. While the courts will not generally intervene in highly personal areas, agreements on financial and property issues will generally be honored, and those regarding responsibilities for children will be honored to the extent that they are not deemed harmful to the children.

Domestic violence statutes also recognize non-traditional relationships. Some domestic violence statutes make express provision for the payment of at least temporary support by the promulgator of the domestic violence to the victim.