Cohabiting: Does Common Law Marriage Happen in Michigan?

Statistics say that couples are getting married later in life. Many, if not most, couples choose to live together before their weddings. Others, never bother with the ceremony at all. But could those couples end up in a common law marriage? How does cohabiting affect your rights when a relationship breaks down?

There is no common law marriage in michigan

Let’s cut to the chase: there is no common law marriage in Michigan. In the 1960s, the state legislature decided that to encourage people to get married, it would do away with the law that allows couples to default to “married” status after a certain number of years. Common law marriage still happens in about a dozen jurisdictions:

  • Alabama
  • Colorado
  • District of Columbia
  • Iowa
  • Kansas
  • Montana
  • New Hampshire (for inheritance)
  • Oklahoma
  • Rhode Island
  • South Carolina
  • Texas
  • Utah

However, if a couple lived together long enough in one of those states to trigger a common law marriage, the couple can’t fall out of marriage just by moving to Michigan. State law recognizes marriages that were valid according to the law at the time and place they were entered into. So if you were married there, you will be married here. That also applies to common law marriages created before Michigan changed the law, but as time passes those become less likely.

Why Cohabiting Can Cause Problems

In many ways, humans are the same everywhere. People change and relationships that may have been wonderful become unbearable. Michigan family law provides guidance to judges over what to do when those relationships break down. The Child Custody Act and other laws direct who makes decisions for and cares for children born to couples regardless of their marital status. But when it comes to dissolving the partnership itself, cohabiting can cause problems.

There’s No Presumption of Joint Ownership

Divorce law assumes that everything that comes into a marriage – from houses to income to debt – belongs to both parties. Stay-at-home parents and parties with bad credit are given the benefit of the presumption of joint ownership on all assets. When those assets are divided, they receive an equitable portion – somewhere around 50/50 – without having to prove their contribution or title ownership. Only inheritances, gifts, and things owned prior to the marriage get carved out as “non-marital.”

But when you just live together, you lose that presumption of joint ownership. Everything goes back to the person who bought it, or whose name is on it. If one party has been supporting the other, the lower wage earner will be out of luck. When one party buys all the big items like houses or cars, the other can be left with nothing after the relationship breaks down.

You’re Pushing Back the Clock on Spousal Benefits

One key factor courts use to decide whether to order spousal support (or alimony) is the length of the marriage. Military pensions, 401k contributions, and Social Security all look back to the date of the marriage to determine the share awarded to the non-participant spouse. In some cases, there is a hard line at 10 years. If your divorce is finalized before your 10th anniversary, you will be cut off from certain spousal benefits.

By postponing marriage and cohabiting instead, you are pushing back the clock on those spousal benefits. You may find it impossible to collect from certain government programs. And the spousal support calculation will not run in your favor. Michigan courts have repeatedly said that they will not consider periods of cohabitation when determining if spousal support is appropriate. They say doing so would make it easier to skip the marriage all together.

You May Be Missing Out on Marriage Privileges

The words “marriage” and “spouse” come up a lot in law. Your marital status can affect your rights at the bank, the hospital, and even on your taxes. There are ways to work around some of these, like completing a durable power of attorney for medical purposes that names your partner as your patient advocate. But for many of the 6000 laws related to marriage, you either need to complete the process or you will be out of luck.

Your Relationship Will Be Treated Like a Contract

If your cohabitation relationship breaks down and you have to go to court to sort out the details, you may not like the way your case is treated. Divorce is assigned to the family court, which is a “court of equity”. That means judges in the family court have a certain amount of latitude to find a fair result. But unmarried couples are treated as though they created a contract to support each other. Contract disputes are resolved in civil court, which is a “court of law”. The judge will be responsible for interpreting your implied contract of mutual support, defining its terms, and then enforcing them precisely. The specifics of your arrangement may not be fair, but if it is the letter of the law, there is nothing you will be able to do about it.

You can’t just wait for common law marriage to kick in here in Michigan. The legislature has said that cohabitation is never enough to form a new marriage, no matter how long the relationship lasts. If you choose to cohabit instead, you are saying “I do” to a host of troubles when your relationship eventually ends.

Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC in Ferndale, Michigan. She handles divorce matters across Metro Detroit. If you have questions about how cohabitation will affect your rights, contact Schmidt & Long today for a consultation.