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What is the Correlation Between and Consequence of Premarital Cohabitation and Divorce?

When it comes to romantic couples “living together”, attitudes have changed from what they were a few decades ago.   The negative stigma attached to couples cohabiting outside of marriage has waned and fewer people view unmarried couples who live together as inappropriate or immoral.   In fact, many couples view “living together” as a way to live without marriage, as part of dating, as a means to reduce expenses or as a useful step or “test run” so to speak in the road towards marriage.   There are rumors, however, of a surprising correlation between cohabitation prior to marriage and divorce.  There are even various studies that have been conducted over the years to note some correlation between cohabitation before marriage and divorce.   Is it true that couples who cohabited before marriage are more statistically likely to head to divorce court?049_pp

In a 2012 New York Times article written by Meg Jay entitled “The Downside of Cohabiting Before Marriage“, the author addressed how common and expected it is among young people today to live together before they get married.   The author pointed out that cohabitation has increased 1,500 percent in the last fifty years, and according to a nationwide 2001 study conducted at Rutgers University and the University of Virginia, half of the interviewees in their twenties indicated that they would never marry someone without having lived with with that person first.  Additionally two thirds of those the interviewees in their twenties indicated that they viewed cohabitation prior to marriage as a way to avoid divorce.  Ms. Jay, however, discussed that studies show the opposite is true and that there is a “cohabitation effect” on a marriage, meaning that people who cohabit prior to marriage it is observed that people who cohabited before marriage often felt dissatisfied with their marriages and they felt more inclined to divorce.  While the researchers assumed that couples who cohabit before marriage had a less traditional view of marriage and were thus  more open to divorce, the researchers concluded that there was a correlation between premarital cohabitation itself and the chance of divorce.   Researchers noted that those who cohabited before marriage often “slid” into the decision to transition from a dating couple to a cohabiting couple, rather than discussing why they wanted to live together or what “moving in together” signified in their relationship.  For instance, one cohabitant may view living together as a step towards marriage, while the other cohabitant may view the cohabitation as a matter of convenience, reduction in living expenses or as a way to avoid a commitment like marriage.  The researchers noted that people of both genders have lower standards in terms of the romantic partner that they would live with rather than marry.   Given the lack of communication and intention to commit, it would not then be surprising that such couples would be dissatisfaction with marriage.

A 2014 article by Lauren Fox entitled “The Science of Cohabitation: A Step Toward Marriage, Not Rebellion“, published Atlantic Monthly Magazine discussed a study published in the The Journal of Marriage and Family, and suggested that cohabitation before marriage does not itself increase the likelihood that the couple will divorce.   Instead, what is more significant as a predictor of divorce is the age and maturity of the couple when they make that major commitment, whether that commitment is cohabitation or marriage.   For instance, a couple who starts to cohabit at age age of 18 is twice as likely to divorce than the couple that begins cohabitation at age 23.    So what matters is the maturity of the decision to “settle down”, whether “settling down” means cohabitation and/or marriage.   Living together remains a popular choice of couples prior to marriage.  This article, however, is similarly critical of the decision to “slide” into a decision to live together and to “slide” into a decision to then marry as couples may cohabit not with the intent to marry but the intent to have less of a commitment to one another. However, it is more difficult to break up with a person that one is living with than it is to break up with a person one is dating but living apart from, and couples find themselves “sliding” into marrying someone that they might not otherwise have married.  The study was, however, positive in noting the decreasing correlation between premarital cohabitation and divorce, which is good news given that two thirds of the couples married that year lived together for at least two years before marrying.

The clear advice from studies like these is that living together before marriage is not an automatic mistake or something that must be avoided, nor is a couple living together doomed to divorce if they marry.  However, living together before marriage should be entered into with caution and a great deal of consideration.   As Ms. Jay pointed out in the New York Times article, “Cohabitation is here to stay, and there are things young adults can do to protect their relationships from the cohabitation effect. It’s important to discuss each person’s motivation and commitment level beforehand and, even better, to view cohabitation as an intentional step forward, rather than a convenient test for marriage or partnership.  It also makes sense to anticipate and regularly evaluate constraints that may keep you from leaving.  I am not for or against living together, but I am for young adults knowing that, far from safeguarding against divorce and unhappiness, moving in with someone can increase your chances of making a mistake — or of spending too much time on a mistake. A mentor of mine used to say, ‘The best time to work on someone’s marriage is before he or she has one,’ and in our era, that may mean before cohabitation.'”

Another reason to consider cohabitation before marriage with caution is because there are instances where premarital cohabitation has impacted alimony and equitable distribution cases in a divorce.   As comedic writer Nora Ephron aptly said, “Never marry a man [or woman] you wouldn’t want to be divorced from.”   When you are cohabiting and thinking about marriage, the couple needs to be open with one another before and after the cohabitation about what significance that cohabitation has on their romantic relationship – and their financial relationship.

For example, it happens frequently that couples who are cohabiting acquire assets together during the period of cohabitation which must be addressed when the couple breaks up – before or after a marriage.   In the case of Aranow v. Silver, 223 N.J. Super. 344 (Ch. Div. 1987), the parties were cohabiting and engaged to marry.  They bought a property that they would marry, but the property was purchased with a down payment funded solely by the Defendant.  The day after Defendant moved in, the parties ended their engagement, and the Plaintiff never lived in the property and did not contribute to the down payment, but the when the property was purchased, it was held in the Plaintiff’s and Defendant’s joint names, and their names were both on the mortgage.  The parties then disputed in court how title was to be distributed.   The family court held that the Defendant would have sole title to the property and sole responsibility for the mortgage, and that Plaintiff’s name was to be removed from both.   The court treated this property the same way it treated the parties’ dispute over the wedding ring (which was also ordered to be returned to the Defendant).  The court found that both were “conditional gifts” with the condition being marriage. Since the parties were not married, the condition was not met and the gifts had to be returned even though the property was held in joint name and was purchased in contemplation of marriage.

In the case of Winer v. Winer, 241 N.J. Super. 510 (App. Div. 1990), the parties were married after a period of cohabitation.  Before the marriage, the Defendant bought a condominium with his sole funds and held the condominium in his sole name.   He chose the condominium without input from the Plaintiff and denied that it was purchased in contemplation of marriage.   He argued that the condominium was exempt from equitable distribution because it was his premarital asset.   The Court nonetheless held that this property was subject to equitable distribution in the divorce, noting that while the Defendant argued that it was not purchased in contemplation of marriage, he testified that he knew that the parties would live there during the marriage when he bought it and hence found that the property was purchased “in contemplation of marriage”.

The Court relied upon the decision in Weiss v. Weiss, 226 N.J. Super. 281, 287 (App.Div. 1988), in which the Appellate Division held that a date prior to the wedding ceremony can, in certain circumstances, qualify as the date of the commencement of the marital partnership when deciding if an asset is subject to equitable distribution in a divorce. In this case, a home was purchased during the parties’ engagement.   The Court held that because the property purchased in specific contemplation of marriage, there was an implied contract between the parties that the property would be a marital asset of both parties.    Similarly, in Raspa v. Raspa, 207 N.J. Super. 371 (Ch. Div. 1985), just days prior to the marriage, the defendant purchased a home in his sole name and with his sole funds, and claimed during the parties’ divorce trial that the parties did not intend for it to be a marital asset.   The plaintiff admitted that she did not contribute to the down payment, but testified that she did help choose the home and she did contribute financially after the marriage for years to the household expenses, including the mortgage and maintenance expenses of the home.  She testified that she was not concerned with the house being held in the defendant’s sole name because he never told her that she would have no interest in the house.  The home was in the divorce considered by the court to be a marital asset subject to equitable distribution as it was purchased in contemplation of marriage and treated as a marital asset by both parties during the marriage.

In Coney v. Coney, 207 N.J. Super. 63 (Ch. Div. 1985), the parties began living together in 1968 when they were both still married to other people.  In 1971 they wanted to buy a house together, but because the plaintiff was still married, the defendant had sole title to the house as she was then divorced.  The parties ultimately married one another in 1978, but in 1984 a divorce complaint was filed by the plaintiff.  The defendant argued that the house was exempt from equitable distribution because it was purchased by her before the marriage in her sole name.   The court noted other cases wherein the courts had taken a more flexible definition of the period “during the marriage” than indicated in the equitable distribution statute and, therefore, held that property was subject to equitable distribution because it was purchased in contemplation of marriage.

In Mangone v. Mangone, 202 N.J. Super. (Ch. Div. 1985), however, the family court did not distribute real estate purchased during the period of the parties’ six year premarital cohabitation when they divorced.  The court indicated a somewhat dismissive view of premarital cohabitation and thus did not believe that a marital partnership could have begun prior to the date of the actual wedding ceremony.   The family court judge stated: “That ‘living together’ relationships exist is a fact of our society.  The marriage contract is being diluted and subject to an epidemic level of attack. Standards of conduct change. Today’s innovations have a way of becoming tomorrow’s conventional wisdom. . . . Indeed many accepted mores have been and are being tested and modified. Such is the way of dynamic society.  Plaintiff would have this court support her position and make a further incursion into the parameters of of the marriage relationship. As stated above, the new live together relationship is recognized by the Supreme Court of New Jersey which confirmed and enforced contracts for support found to have been created by people who choose to live this alternative lifestyle.  . . . [W]hat then is the effect of the parties entering into a marriage contract?”   The Court rejected the idea that the parties had any kind of implied contract that the property purchased during their cohabitation was a marital asset as that contract even if it had existed would have been superseded by a new contract at the time of the marriage.  Hence that property was considered exempt from equitable distribution as the premarital asset of the Defendant.

This notion was rejected by the family court in Rolle v. Rolle, 219 N.J. Super. (Ch. Div. 1987), where the family court acknowledged that the equitable distribution statute authorizes distribution of assets acquired during a marriage.  Unlike the family court in Coney, the family court in this case did not rely on the equitable distribution statute to equitably distribute a property purchased during the parties’ long period of premarital cohabitation or extend the definition of what “during the marriage” meant to include assets purchased “in contemplation of marriage” when the parties were living together.   Rather, the Court applied equitable concepts such as implied contract, transmutation and quantum meruit to allow the home to be distributed between the parties in their divorce in order to avoid a grossly inequitable result of the home being distributed only to one party.

Cases such as the above are another reason why couples who are living together need to be clear and explicit with one another in terms of what their expectations are when they are cohabiting and what their expectations are when a significant asset is purchased during the period of cohabitation.   It may be uncomfortable but they need to consider and discuss what happens to such assets if they break up before or after marriage.

In certain instances, cohabitation prior to marriage may impact an award of alimony as well.   For example in the case of McGee v. McGee, 277 N.J. Super. 1 (App. Div. 1994), the Court noted that one of the statutory factors that a court has to consider when awarding alimony is the duration of the marriage.  In this case, the parties were married for only three years.  However, when determining Dr. McGee’s alimony obligation, the court did not limit itself to considering the duration of the marriage.  The court considered the length of the parties’ relationship, noting that the parties had lived together for more than seven years prior to the marriage, and awarded permanent alimony to Ms. McGee based on the parties’ having a ten year relationship and the parties’ economic disparity and earning capacity at the end of the marriage and Mrs. McGee’s economic dependence on Mr. McGee, who benefited from Mrs. McGee’s  premarital assets and the substantial non-financial contributions that she made to Dr. McGee and his career.   The Court thus “tacked on” the period of cohabitation to the length of the marriage when determining the duration of alimony.

The alimony statute, however, does not require the court to consider premarital cohabitation nor does it require that a court tacks on a cohabitation period.  The statute does not even state that a court has to consider a period of premarital cohabitation between the parties.  The statute does, however, allow the court to consider “any other factor” that the court deems relevant and does allow the court to consider extraordinary circumstances when awarding alimony.   The alimony statute does not deny a family court all ability to exercise its discretion or eliminate its ability as a court of equity to provide equitable relief.

The decision to “live together” should be considered an important decision that has consequences and may have a level of commitment in and of itself.   It is a decision that must not be entered into lightly and the parties should have serious discussions to ensure that they are on the same page in terms of the level of personal and financial commitment that the couple are making to one another.

Obviously, such matters when they do lead to divorce are fact sensitive and can be complex.  The law office of James P. Yudes, A Professional Corporation has significant experience with matters involving support and equitable distribution and are available to assist you.