Show Topic: Cohabitation
This show aired on April 9, 2017, and was hosted by attorney David Enevoldsen. This show reviews the issues attendant to cohabiting with another person with whom you are not married. Specifically it looks at such things as whether or not parties can have agreements regarding property acquired (even in situations in which there are no express discussions about property), common law marriage, engagement rings, and children.
Headlines
The headlines in this show looked at the practice of halala as utilized to save marriages and Dwayne Wade’s ex-wife’s malpractice litigation against her former divorce lawyer.
Did You Know
This show’s Did You Know examined the historical usage of the term, “Rule of Thumb,” and how husbands were allowed to “correct” their wives by using a stick not larger than their thumbs.
Transcript
Announcer: Family Law Report is hosted by Family Law Guys, an Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems with the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more, or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.
Announcer: The discussions and information provided in Family Law Report are intended to be general in nature and are not directed for any individual circumstances. No attorney-client relationship is being formed through this program. If you need legal advice, your particular circumstances can vary from what is presented here and you should seek the advice of an attorney licensed to practice in your state.
Announcer: Welcome to the Family Law Report, the show that explores issues related to marriage, divorce and children. Hosted by David Enevoldsen, a practicing family law attorney in Arizona. Now here’s your host.
David Enevoldsen: Hello everybody. Welcome to Family Law Report. I’m your host, David Enevoldsen, here with you every Sunday at noon on Independent Talk 100 KFNX. Here on Family Law Report we discuss all the current topics of family law and that can range everything from what’s going on in the political arena to just kind of simple stuff like how to work through nuts and bolts of a divorce. I am a practicing attorney. I work in the area of family law and when I say family law I mean specifically anything that’s related to marriage or divorce, fights related to custody of children, child support, prenups, anything in that area.
I am a partner at a law firm called Family Law Guys here in Arizona and we focus primarily on helping divorcing parents avoid getting screwed out of time with their children. We have offices in the Phoenix area. We have a Prescott office. We don’t practice outside of Arizona but if you have a family law issue, you want to reach out to us and schedule an appointment to talk or just find out more, you can do so by calling 480-565-8680 or you can check us out on our website at www.familylawguys.com.
Today’s show we’re going to be talking about cohabitation and what that means, what the advantages of it are, what the disadvantages, what the dangers are, that sort of thing. I’m joined today by my co-host, Shelley Rosas. Shelley works for our firm also, Family Law Guys. She is, as she keeps reminding me, not a guy, despite the name Family Law Guys. So if you need a female presence as an attorney we have that as well. Say ‘hi’ Shelley.
Shelley Rosas: Good afternoon.
David Enevoldsen: You’re being way too quiet over there. First up, we’re going to hit some headlines, what’s been going on in the press recently. One of the most interesting things I saw was sort of an extension of something we talked about in the headlines recently about the practice of triple talaq. Just as a reminder, in case you missed that show or haven’t heard about it otherwise, there is a growing controversy in India about this practice of triple talaq.
Now, triple talaq is essentially an ancient Muslim practice wherein a husband can, for no reason whatsoever, or for reason or just at a whim, a husband can say: I don’t want to be married anymore … And he therefore says ‘talaq’ three times, which is the equivalent of saying: I divorce you. I divorce you. I divorce you. At that point the parties are just automatically divorced, so the marriage is over. The wife doesn’t have any say in it. There doesn’t have to be any cause. The court doesn’t have to officially recognize it. You don’t have to go through this normal divorce process that we would see in traditional western culture.
The whole practice has come under fire in India in particular, which still allows the whole thing to happen. There are a number of Muslim countries that have outlawed the practice of talaq but India is still technically recognizing it and it’s currently being reviewed by their high court for its constitutionality, whether or not they’re going to continue to uphold it. In the press, as this has all been coming out and there’s been all this controversy surrounding that, there’s been a whole additional sort of side practice that is conjoined with this practice of talaq called Jalala.
Basically the idea is that if the parties get a divorce and they’ve gone through this triple talaq process and then they want to remarry, they can’t do so unless the wife has remarried someone else first, consummated that relationship and then gotten divorced from this new husband, then she can go back to the original husband that divorced her and then they can remarry.
So there’s a couple of different situations where this is popping up. One is where the husband may go through this triple talaq process and say: Oh wait, I’m sorry, I was too hasty … Or they reconcile or whatever, and then the two parties want to get remarried but now they have to go through this Jalala process in order to get there so the wife is essentially forced into the position of marrying someone else, sleeping with them and then divorcing them so that she can recover her original marriage.
The other scenario is where a woman is desperate because she just got divorced, she was just dumped by her husband out of the blue, she’s still completely in love with him, says, “I want him back.” In order to line herself up to put herself in a situation where she can be remarried, she goes out, engages in this Jalala process.
The place where the controversy is popping up is that apparently there’s a number of Jalala services out there which people are pointing to as exploiting women who are in these vulnerable positions and basically the Jalala service will have a guy that, for a fee, and the fee can be up to several grand, will marry the woman who is desperate to get back her husband, sleep with her … And I was reading some accounts about where there are places where they just have a specific room where they take these women that are trying to get remarried, put them in the room, have sex with them and then promptly divorce them for a fee. The controversy is, of course, that these guys are exploiting these women in very vulnerable positions and that this is a practice that should be banned right along with the triple talaq.
I’ve got to tell you, I’m having a hard time with this whole thing, just with my traditional western mindset. Just getting my head wrapped around what was going on there was difficult. I don’t know even if that’s being wrapped into the talaq question that’s going in front of India’s high court. It certainly seems to be an ancillary product so even if the triple talaq thing is wiped out I would presume that also that would take away the Jalala practice. If I see more in the news I will report it back to you guys at a later date because I am very intrigued about where this all goes.
In other news, looking at the celebrity divorce front, which as I’ve said before, I really like celebrity divorces. I know they sound a little tabloid-ish or gossipy, but one of the things that I love about it is that as a divorce attorney you can watch these celebrities going through divorces or custody fights and they are exactly like what you see in our day-to-day practice as family law attorneys. Would you say that’s a fair characterization, Shelley?
Shelley Rosas: Yeah. Absolutely.
David Enevoldsen: All the things, all the people at their worst, all the crazy that you see is the same stuff that normal people go through. You’re taking these people who we often otherwise put on pedestals and they’re just the elite of our society from many’s perspective and they’re just humans like everybody else doing the same trials and tribulations and failings and weaknesses that everyone else goes through.
So with that, current celebrity divorce front. There is a fellow named Dwyane Wade, which if you’re not familiar with him he’s a professional basketball player for the Chicago Bulls. He, a little while back, married his high school girlfriend whose last name is Funches and I’m not even going to try to pronounce her first name. They got married in 2002 and in 2007 he filed for divorce and it was an extraordinarily contentious divorce. Eventually, three years later in 2010 they got a divorce decree that they had come to an agreement on, so it was a consent decree which in the divorce process you can do that … If the parties can come to an agreement at some point they can sign the nup and as long as there’s not something completely outrageous, generally the judges will sign off on that.
Well they get this divorce decree back in 2010 and, by the way, the time range there from 2007 from the filing to 2010 happens sometimes and that’s one of the products I think of really high conflict situations is that your divorce can get really prolonged and it can go on for years and years and years. Another reason to try everything you can to get along and not escalate conflict.
Regardless, they went back later, they had … It seems like this was extremely high conflict. They later had a fight over the children. They came back in, I think it was 2011, over a custody fight. The two had two boys. During that custody fight in 2011 Wade was granted sole custody of the children so mom wasn’t even in the picture there. Now, fast-forward a little bit, in 2017 Funches, who had under the original consent decree walked away with a property settlement of over five million dollars, is apparently very unhappy about that because she knows that Wade has gone on to make considerably more through his work for the Bulls.
Acknowledging the fact that she can’t turn around and sue him because she entered this agreement and there wasn’t any real defect in it, but because she’s still really upset about it she has now filed a malpractice lawsuit against her former divorce lawyer making the allegation that he was secretly dealing with Wade and that she didn’t know anything about it. On Friday, a couple of days ago, the judge threw out her lawsuit but said that she had the ability to amend it. The noteworthy point of this is that the last attorney, the one that she’s now suing for malpractice, was her 13th lawyer that she had recruited during this legal process.
Now, I can see Shelley nodding her head and smiling as I say that because both of us as attorneys know exactly what that means. We have an internal policy, and I think most lawyers are familiar with this, that we don’t practice with everybody. Just because you show up at our doorstep and say, “I want to hire a lawyer …” and start throwing money at us, that doesn’t mean we’re going to work with you. We filter people out because we don’t want to work with crazy. There are a lot of people out there that are crazy. One of the things that we look for in terms of that crazy is how many lawyers has this person had before just because … I can understand if you go to an attorney and you have had one attorney before and you’re saying: Oh, that attorney was just messed up and didn’t know what they were doing. I need your help because you’re so much better. Okay, maybe the attorney was problematic.
On the other hand, if you had four attorneys before me, maybe the problem wasn’t the attorneys, maybe the problem was you. That doesn’t necessarily mean we’re not going to work with you if you’ve had previous attorneys, but that is something that raises our eyebrows because, again, we don’t want to have to deal with someone that is putting us in a position where we have to defend crazy facts or they’re yelling at us over nothing that makes any sense or that sort of thing.
We will be back in just a second. We’re going to take a quick break. I’m attorney David Enevoldsen joined by cohost Shelley Rosas. When we come back we’re going to talk about cohabitation and what that means. If you want to call in and ask any questions you can do so at 602-277-KFNX. You’re tuned into Family Law Report on Independent Talk 1100 KFNX.
David Enevoldsen: Welcome back to Family Law Report. I’m your host David Enevoldsen, an attorney with Family Law Guys, an Arizona law firm. Here with you every Sunday at noon on Independent Talk 1100 KFNX. Joined today with my cohost, Shelley Rosas who works for my firm as well and as she has been pointing out to me recently, she’s not a guy. So Family Law Guys is not just staffed by male attorneys and if you prefer to work with a woman attorney we can cater to that as well.
We’re going to be talking today about cohabitation, non-martial situations in which two parties are residing together. If you want to reach out and schedule an appointment with our firm, you can do so by calling 480-565-8680 or you can check out our website at familylawguys.com. If you’re listening and you want to call in and ask any questions or share thoughts you can do so at 602-277-KFNX. Now we’re going to jump into our show topic but I’m going to do our next segment, which we tried out last week for the first time and I’m going to keep up with that called Did You Know. In Did You Know we just give a quick piece of family law trivia, something that is interesting that maybe has changed or is the current.
Today I was going to look specifically at the phrase ‘rule of thumb’. Many of you may use the phrase ‘rule of thumb’ in your daily speech. In fact, Shelley, you were saying you had a text just yesterday in which someone said ‘rule of thumb’.
Shelley Rosas: Yeah. I got a text last night from someone who said: The rule of thumb is … It was basically a medical interpretation. If your vision is blurry we always check for high blood pressure first. That’s the rule of thumb.
David Enevoldsen: So clearly a phrase that everyone uses in our normal daily parlance. The origin of the phrase, well not necessarily the origin because I was actually reading about this and the origin may predate the recent usage of the phrase, but if you go back a couple hundred years what the phrase had come to mean was that a husband could impose moderate corrections, is what the case law says, on his wife. If she was in a situation where she was misbehaving or speaking up and being unruly, something along those lines, he could impose corrections.
Now there was always a question about how far could he go because he couldn’t just beat her to death as a correction because then he would be engaged in some sort of criminal conduct, but he was allowed to just engage in corrections. The rule became what was called the ‘rule of thumb’ where he could correct her using a stick, by hitting her with a stick that was no wider than his thumb. As long as the stick wasn’t any wider than his thumb then he was okay in essence and then he couldn’t be prosecuted.
There’s a case that we read in law school, both Shelley and I had different family law classes, but we both had been exposed to this case called State v Rhodes. It’s an 1868 case where they talk about this from North Carolina, it’s from the Supreme Court there and they go into this. That’s the scenario where they describe the case and talk about how they’re at odds with some of their sister states but they expressly reject the rule of thumb, but still say it’s okay to impose corrections on your wife so long as the effect is not severe. Specifically in that case they were looking at a criminal charge, assault and battery on the wife. Clearly things have changed a little bit since that time. Obviously it’s not okay to go correct your wife. I am not by any stretch saying that so please don’t do that. This was 1868, things have changed a little bit, but this is our Did You Know.
Shelley Rosas: Yeah. Let me add something here. This line from the case talked about public policy at the time. So public policy at the time was not to inflict on society the greater evil of raising the curtain upon domestic privacy, just to punish the lesser evil of trifling violence.
David Enevoldsen: Yes.
Shelley Rosas: So, I think …
David Enevoldsen: Obviously things are different.
Shelley Rosas: Things are different today. Right.
David Enevoldsen: Yes. Clearly domestic violence still happens but societally I think we’re looking at it very differently. It’s not acceptable. We have statutes that prohibit it and impose all sorts of potential sanctions, particularly in the context of parenting time. So don’t do it. It’s not accepted. But this is our kind of piece of historical trivia to see where we’ve gone and what’s happened.
Shelley Rosas: I just think now we’re raising the curtain. We are raising the curtain on domestic violence.
David Enevoldsen: Oh yeah. Definitely.
Shelley Rosas: In the family. We are not trying to keep everything “in the family” if it’s hurting people.
David Enevoldsen: All right. Let’s jump into our show topic: Cohabitation. We’re talking today about cohabitation, which is, as I said before, essentially where two parties who are not married are just living together. It’s becoming increasingly common. I was reading stats yesterday that indicated there’s been a 900% increase in cohabitation as opposed to parties getting married over the last 50 years. There have been quite a number of interesting studies looking at correlations between cohabitation versus marriage and divorce rates. There was one in 2014 from the Council on Contemporary Families that made the conclusion that there wasn’t a significant correlation between someone cohabiting before marriage versus getting married and the likelihood that they were going to break up, get divorced.
Their conclusion there was that it was more that they looked at the percentages, the ages that people were getting married and how long they had been together before they got married as opposed to just cohabitation versus marriage. I’ll spare you all the stats on that, but it’s clear that there has been an increase in cohabitation over the years. We talked on a previous show about divorce rates have been declining but a lot of people are pointing to the fact that that’s also because marriage rates have been declining. Cohabitation is becoming the norm as our society evolves, it seems.
Now, there are a number of considerations that we want to look at and pop into mind if you’re in this cohabitation situation. I think there’s a lot of misunderstandings as well. We’re going to talk about a few of those. One of the prominent ones is that you can have implicit agreements that come about by way of your cohabitation. I’ve heard people say: I’m not going to get married because I don’t want to grant all these property rights to the person that I’m with. I’ve expressly heard people say that when they’ve come to me and say: I’m not going to get married because I don’t want her to get half my stuff or that sort of thing.
If you’re living together, that doesn’t necessarily wipe that risk out. There are a couple of cases in Arizona, and I imagine there are similar things in other states, I don’t know about what the other states say on this particular issue, but specifically Cook v Cook and Carroll v Lee, if you need to know the names of the cases, both stemming from the 1980s. Still law today and basically they stand for the proposition that if you are living together in what cases call a meretricious relationship, you can have an implicit agreement, an implicit contract between the two of you to pool and share your resources.
The court can come in and look at it as though you are in a situation where you sat down and you’ve agreed: We’re going to share our stuff and you don’t even have to expressly say that. The court can take it from circumstances. They can look at the situation and say: Okay, you guys were acting like a married couple or you were acting like two join partners in a joint venture and now from that situation we’re going to extract what was going on.
It can be potentially very scary and I have personally worked on cases where you were essentially doing a divorce with two people that have been living together for a very long time. It’s actually in some ways worse because now you’ve got way more litigation because if you’re married you know exactly what the rules are, they’re kind of a 50-50 split whereas if you’re cohabiting there’s a couple-tiered question. First you have to figure out what the agreement was from circumstances, so it may or may not be a nice 50-50 split. It may have been implicit through this contract that you would have to determine by going to a trial, what exactly the nature of the agreement was. Maybe you had some sort of circumstances that were showing there was a 70-30 split and then you’ve got to figure that out.
On top of that, if you’re going down this road, it can be a civil suit and can end up in front of a jury, which normally in family court you don’t have juries if you’re just doing a normal divorce trial, you’re just in front of a judge as opposed to a jury. Now in my mind at least there is considerably more prep and attorney involvement going to the process of preparing and litigating a jury-type case as opposed to going through a case that is just in front of a badge, that’s my personal feeling.
There’s potentially a lot more danger in some ways because you’ve got a lot more ambiguity in terms of what’s going on, but you also have a lot more potential litigation if you’re in the situation where you have to break things up. Now this is all talking if we’re in implicit situations. If you are going to be in one of these situations I would strongly recommend that you go out and get a cohabitation agreement. That’s something you can talk to any attorney about that does family law. Hopefully they will … Maybe not any attorney that does family law but go to a competent attorney that does family law and they can help you with the cohabitation agreement, which is a lot like a prenup.
You can go through an itemize so that you have in writing expressly what that agreement is and expressly what that situation is going to be in the event that you do break up. So super dangerous. Prenups are another thing I advocate. It doesn’t have all of the exact same advantages of prenups. Prenups, we could have a whole show about prenups I’m sure, but there are things within prenups that can actually protect you that don’t involve divorce, which I’m not sure that that necessary applies with the cohabitation agreement. For example, with a prenup you’re compartmentalizing out your assets such that if a creditor is chasing you, you could be insulated from liability for your spouse so that normally under just a normal community property system, a creditor comes and chases you down and they name both you and your spouse because your spouse has a community property interest in all of your stuff. Well if you’ve separated everything by way of a prenup and everything you have is separate property, the creditors can’t reach beyond that. So regardless, get a cohabitation agreement.
All right. We’re going to take another quick break. I am attorney David Enevoldsen joined by cohost Shelly Rosas. When we come back we’re going to be talking more about cohabitation. You are tuned into Family Law Report on Independent Talk 1100 KFNX.
Speaker 4: Family Law Report is hosted by Family Law Guys, an Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems with the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more, or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.
David Enevoldsen: Welcome back to Family Law Report. I’m David Enevoldsen your host, attorney with the Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. I’m joined today by my cohost, Shelley Rosas who … Say your name, because she was just correcting me in the pronunciation.
Shelley Rosas: Rosas. It’s Spanish.
David Enevoldsen: I think she’s wrong.
Shelley Rosas: Rosas. Rosas.
David Enevoldsen: I think it’s Rosas, but … All right, you’re just saying your name wrong.
Shelley Rosas: No.
David Enevoldsen: Yeah you are.
Shelley Rosas: No.
David Enevoldsen: Yeah.
Shelley Rosas: No.
David Enevoldsen: She is. For all of you out there, I’m correct. I’m the host so I get to say. If you want to reach out and schedule an appointment with our firm at Family Law Guys you can do so at 480-565-8680 or you can check us out on our website at www.familylawguys.com. If you’re listening and you want to call in and ask any questions or share thoughts you can do so at 602-277-KFNX.
We’ve been talking today about cohabitation, that is the situation in which you are not married but you’ve been living together and what some of the implications, risks, dangers, benefits of that might be. We just talked about the fact that you can have an implicit agreement which can essentially lead you into what functions as a civil divorce, so it doesn’t necessarily get you out of all the situations where you are avoiding paying her/him some sort of share of your assets. You can still end up in that situation.
Shelley Rosas: And I think, David, it’s important to kind of define what an implicit agreement is. That means you don’t have something explicitly written down.
David Enevoldsen: Correct.
Shelley Rosas: You maybe haven’t even necessarily sat down and had a conversation.
David Enevoldsen: Right.
Shelley Rosas: It can simply be a course of conduct over years. So you’ve been functioning a certain way. You’ve been pooling your money. You’ve been sharing the rants. You’ve both been making the car payment but the car’s in one person’s name. Does the car belong to one of you or does it belong to both of you?
David Enevoldsen: And it can’t be both of you. I’ve seen it.
Shelley Rosas: Yeah. Absolutely. So if there is a lengthy course of conduct, that can be enough to imply that you have a contract, an implicit contract, and that there were agreements for mutual benefit and then there can be …
David Enevoldsen: Absolutely.
Shelley Rosas: It very much functions like a property settlement in a divorce.
David Enevoldsen: Yeah. Absolutely. Another issue that we look at within this context is what is often referred to as palimony. If you were to get married, often times you open the door to the question of what’s colloquially referenced as palimony. Arizona calls it spousal maintenance. The basic idea is for some reason you’re going to be paying support to your ex, ex-spouse. In the context of cohabitation we call that palimony. Arizona does not recognize that so that is actually one thing that you’re not going to open your door to a risk of generally speaking, unless it’s going to somehow funnel into a contract that you had otherwise. There are states that do recognize palimony. For example, California has case law in place that says that you can have palimony so you can have a cohabitation situation where you were living together, weren’t married and could still end up making some sort of spousal … Not spousal support but the equivalent of spousal support payments to your ex as soon as you guys break up.
I’m not sure what the answer to it is but one of the concerns that pops into my head is: What if you were living in any place like California where they recognize it. You had a non-marital relationship for the past 10 years then suddenly you just move over to Arizona and then you break up. Does that somehow open the door to palimony? I don’t know what the answer to that is because I know there are some situations where Arizona will recognize things that have occurred in other states. Regardless, here’s another situation where I would say: Be very careful about … You’re shaking your head as in you think you know the answer and it’s ‘no’ or you just think that’s a messy situation.
Shelley Rosas: It seems like I just read about this last night. I think… No, I think if you moved back to California and you litigated it there you’d be okay.
David Enevoldsen: Okay. Well, regardless be very careful about … And this goes back to the cohabitation agreement thing. If you’re going to live with someone else it makes a lot of sense to have an express agreement that you have written out and put into place and say: Here’s the things that you’re going to be responsible for. Here’s the ownership interest of things that I’m going to have. Here’s the stuff that you’re never going to have a claim to. There’s no palimony whatsoever, no matter where we are or what’s going on, and something like that. Or, there is palimony if that’s something you want. So, dangerous, and get a cohabitation agreement. We’re going to see that theme coming up here.
Another question that pops up very often in the context of cohabitation for me, and I think there’s a lot of confusion about this, is the idea of common-law marriage. I have heard many, many people come to me and say: We’ve been living together for a long time so aren’t we just married? That’s sort of the idea of common-law marriage. The basic concept is you’ve lived together for a while, you hold yourselves out as husband and wife very often. There are different states that actually recognize common-law marriage, not very many. There’s only a very small handful. Today there’s only nine of them on the books that will recognize common-law marriage.
The requirements are a little bit different but the basic idea is you’ve been living together for a certain amount of time, pre-defined by whatever the state is, and you’ve been holding yourself out as husband and wife and sometimes commingling assets, something to that effect. States that do recognize it include: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas or Utah. Also, District of Columbia and New Hampshire does but only for purposes of inheritance, not for any other reasons. You’ll notice that Arizona was not in that list. We do not recognize common-law marriage here in Arizona.
Shelley Rosas: Under any circumstances?
David Enevoldsen: No. Would you like to share what the circumstances are that we do recognize common-law marriage? I was about to say there is one exception to that fact. Arizona does recognize common-law marriage in one very limited scenario. What is that, Shelley?
Shelley Rosas: If you move here.
David Enevoldsen: Yes. If you have validly entered into a common-law marriage in a place where common-law marriage is recognized. So you married there technically and you move to Arizona, Arizona will recognize that common-law marriage. Here again, there’s some potential danger in living together, particularly if you’re in one of those states: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Utah, Texas, District of Columbia or New Hampshire for inheritance purposes. I’m reiterating the list so that if you’ve been in one of these situations and you moved here I just want to make sure you’re aware of it.
Shelley Rosas: Yes. If you lived there and you had an agreement to the common-law marriage, either parties were competent to contract, they had lived together as husband and wife, held themselves out as being married and gained a reputation or were recognized as being married in the state that recognized common-law marriage where they come from prior to moving to Arizona.
David Enevoldsen: That was a very attorney response. Thank you.
Shelley Rosas: Yes it was. There’s a lot to show.
David Enevoldsen: Yeah. We attorneys like to go through elements of things and talk about: Here is all the very technical requirements. I think the theme of this coming out is that if you were in some other state, double check and see if that’s a place where you might have been in a common-law marriage, but if you’re in Arizona I generally wouldn’t worry about it because it’s just not something we do. Arizona has very specific requirements outside of that one exception that you have to go out and get a certificate, have a ceremony, that sort of thing.
Shelley Rosas: Can you go on vacation for two weeks to one of those states and …
David Enevoldsen: No.
Shelley Rosas: … Establish a common-law marriage and then come back?
David Enevoldsen: I think part of the problem is, well number one: How would you be living in the other state if you were on vacation?
Shelley Rosas: I don’t know. You could say you were there. You intended to stay and then you changed your mind. I don’t know. Is a trip sufficient to establish a common-law marriage?
David Enevoldsen: I generally don’t think it would because most of the requirements in these other states require that there has to have been a certain amount of time and that’s often into years. If you were just going on a two-week vacation you’re not going to be able to establish those requisites in one of those other states to get yourself into a common-law marriage.
Shelley Rosas: It has to be a domicile.
David Enevoldsen: Right.
Shelley Rosas: It’s not a domicile if you are visiting.
David Enevoldsen: That’s another one of those legal terms. Do you want to explain what domicile means?
Shelley Rosas: Yes. If you live there … Are you there and do you intend to stay there living.
David Enevoldsen: Right. The legal people like to say: It’s the intent to permanently reside.
Shelley Rosas: If you’re going to take the bar exam you need to know that.
David Enevoldsen: Because I’m sure you’re all dying to take the bar.
Shelley Rosas: Yeah.
David Enevoldsen: Another issue that comes up is children, and this is one that obviously you can have kids if you’re in a cohabitation type situation. The interesting thing about children is that the rule is pretty much the same whether you have kids or you don’t. These will function in what we call paternity cases where there is no marriage and the parties just had a kid, whether they’re living together or not living together. Also, this all functions, the rules that we look at in terms of deciding things like parenting time, legal decision-making, child support, are exactly the same as the rules you would be looking at in a divorce situation. I tend to break up child issues into three major categories: It’s what’s called parenting time, legal decision-making and child support. Does that sound like a fair breakdown to you?
Shelley Rosas: Absolutely.
David Enevoldsen: Just so that you guys have an understanding of what that is, and here’s another one where we could do just an entire show about this topic, but parenting time is essentially where is the child when? You could have a parenting plan that could look something like: With mom week one, with dad week two. Or with dad on the weekends, with mom during the week. There’s a million variations on how you could do this, but that’s the basic idea of parenting time is: Where is the child at what time?
That’s compartmentalized from another question which is legal decision-making, which is what Arizona calls it. Other states call it different things. For all of these, except for child support. I think everybody calls child support child support. There are different terms that are used in different states. Parenting time is often called physical custody. Legal decision-making is what Arizona calls it, it is often called legal custody. Depending on where you are there could be a different phrase, but the basic idea is just as it sounds like, legal decision-making is who gets to make rights to … Who has the right to make legal choices about the child. That could be things like: Where does the kid go to school? What doctor does he go to? What medical choices are we making? What church is the kid going to? Anything that has to do with a legal decision, that’s legal decision-making.
By default, usually you’re looking at a joint situation for that one. That’s a much easier question but there are lots of things that can throw that out of whack. The last major thing we looked at for purposes of children is child-support, which I think most people know what child-support is, at least intuitively. The basic idea is that you’re imagining this fiction where the two parents are still together and you’re looking at their respective incomes and saying: Okay, if these two people were together they would be pooling their resources and the child would be obtaining the maximum benefit from that. But now that they’re split up we want to move the money around to make sure that the child is continuing to receive the maximum benefit of that support so that you don’t just have one party sitting on all the money and the child doesn’t get any benefit of that because children cost money. That’s the idea. These are the same regardless of whether you’re married or not, you’re still going to have to deal with those issues.
We’re going to take another quick break. I’m attorney David Enevoldsen joined on my cohost Shelley Rosas, I’m not even sure how to say it now. You’re tuned into Family Law Report on Independent Talk 1100 KFNX.
Speaker 4: Family Law Report is hosted by Family Law Guys, an Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems with the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more, or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.
David Enevoldsen: Welcome back to Family Law Report. I’m David Enevoldsen, your host, attorney with the Family Law Guys, an Arizona law firm. Here with you every Sunday at noon on Independent Talk 1100 KFNX. Joined today by my co-host Shelley Rosas. I’m just going to say it correctly because you don’t know how to say it, who works for the same firm as me. If you want to reach out and schedule an appointment with my firm, Family Law Guys, you can do so at 480-565-8680 or you can check us out on our website at www.familylawguys.com. If you’re listening and you want to call in and you have any questions or just want to share some thoughts about anything you’ve heard today, you can do so by dialing 602-277-KFNX.
Now, we’ve been talking today about cohabitation situations, that is scenarios where you are not married but you are still living with another person. That could be with a man or a woman, it doesn’t really matter as long as you’re in what the case law likes to call a meretricious relationship. As long as you have some sort of romantic relationship in that sense and you’re living with another party, this is what we’re talking about.
Right before we went to break we were talking about child issues and the fact that child issues are basically the same thing whether you’re married or not. In fact, if you’re looking at a divorce situation analysis as to what’s going to happen with respect to parenting time or legal decision-making or child support is going to basically be the same thing. Not basically, it is the same thing. The analysis is identical in the way that we look at it and the way that we determine what’s going to happen is going to be decided by the courts in exactly the same manner.
One thing I did want to note is that we were talking earlier about cohabitation agreements and the fact that for a lot of these situations you have … We think it’s a good idea to get a cohabitation agreement in place, which kind of functions like a prenup except outside of marriage so that there’s not any dispute later about if you do break up what the terms of the agreements were because, again, you can have a situation where you’re extracting from the situation what the implicit agreement was in place. There could be some unspoken agreement that was there that the court could find later and say: Well you really had an agreement this was going to be a 50-50 split of all of your assets or whatever that is.
That’s one of the big questions there that you’re looking at. That’s one of the things you have to decide is: What is the nature of that agreement? Again, it makes sense to have a cohabitation agreement. The one thing I wanted to mention with respect to the children’s stuff is that you generally can’t agree that stuff away. With child issues the court tends to reserve jurisdiction over the children’s stuff. For example, you couldn’t say: All right I’m going … You can’t do this in a prenup either. You can’t say: I’m going to wipe out child-support forever. You just can’t because the court has to … they have jurisdiction over the interest of this third party, the child, and it’s not in their best interest to say: All right, I’m never going to have support ever.
Especially if you’re in a situation where Mom is completely destitute and dad is making a million dollars a year or vise versa and the children are with the destitute parent. Now the children are kind of getting screwed over in essence. The court will always retain jurisdiction over that and I intentionally don’t put provisions like that into either the cohabitation agreement or a prenuptial agreement because I’m always concerned that having those provisions in there is going to potentially invalidate your agreement and I don’t want to run that risk. If you are looking at a cohabitation agreement situation, or a prenup for that matter, I would strongly encourage you not to throw those provisions in there, or even if they are in there just know that they’re not going to necessarily be binding because the court can reject all of that because they are looking at only what is in the best interest of the child, not what some agreement was between the parties and they always reserve the ability to override any agreements.
One other situation with respect to cohabitation scenarios that we run into a lot is the issue of engagement rings. Because very frequently we … You’re laughing. I know what …
Shelley Rosas: Yeah. I just had a dispute not too long ago over like a $13,000 ring.
David Enevoldsen: Oh, okay.
Shelley Rosas: Diamond. It was, you know.
David Enevoldsen: Well, that’s not uncommon. I have litigated situations like that. The concern is that very often when people are living together and I’ve seen express discussions about: Okay, if we’re going to live together we need to be engaged. Because there are certain situations where someone doesn’t feel comfortable unless there’s some sort of commitment in place even if they’re not going to actually marry sometimes they’ll say: All right, let’s at least get engaged before we move in together. Sometimes also, obviously, people can be living together and then get engaged so there’s lots of situations where this can pop-up and if the engagement ring is given, as is normal tradition in Western culture, we hand over this engagement ring and then all of a sudden there’s a breakup and you have something like a 13 to 20 or $40,000 ring, and I’ve seen cases with a $40,000 ring before.
What happens with that on the breakup? Does the person that gave it over, does the husband, I guess in the sort of traditional system, or the future potential husband, get the ring back or does the wife, the potential future wife, woman I guess I should say, although now we’ve accepted the potential for homosexual marriages so it’s not necessarily man and woman, but just for simplicity’s sake I’m going to stick with the traditional Western regime of man/woman.
So man gives over the ring, does woman get to give the ring? Interestingly in Arizona we don’t have law on that particular issue. There is no established law whatsoever as to who gets to keep an engagement ring in the situation where you don’t marry but you break off the relationship, which can make things very scary.
Shelley Rosas: Yeah. Therefore, lots of things need to be looked at. I guess one of the things that I looked that was: Was it intended as a gift or was it given in contemplation of marriage and was it a contractual type of agreement.
David Enevoldsen: You’re reciting elements again.
Shelley Rosas: I’m sorry. But those are the two things I look at. Was it intended as a gift and it was given and didn’t need all the elements of just a flat-out gift? Or was it a contract?
David Enevoldsen: Well, much of the conventional wisdom of what we do when we’re looking at this question of engagement rings is we look to the law of other states because there are quite a few other states that have established what’s going to happen with an engagement ring. Many of the other states have come to this idea and conventional wisdom with everyone I’ve talked to in Arizona, despite the fact that we don’t have established law in Arizona about it, is that we look to this case law elsewhere. The dominant theory that I’ve seen popping up in other states, and this is the sort of assertion that we’ve focused on when I’ve litigated it is that this is what’s called a conditional gift. The essential idea is: I’m gifting you this engagement ring on condition that we get married and it’s sort of under this understanding that the gift is getting transferred over so long as the marriage comes to fruition.
Now, if the marriage doesn’t come to fruition then you end up kind of looking at who’s at fault in a sense in many of the ways that you look at this. Many of the traditional ways is you look at who’s at fault. For example, if I have my $13,000 ring and then I hand it over to my bride-to-be and I say: Here you go, I love you, blah, blah, blah, blah. Later on down the road we break up, the question is going to be whose fault was that?
Shelley Rosas: Which is interesting in a no-fault state.
David Enevoldsen: Right, but we’re not talking about marriage now, we’re talking about engagement. So, if, for example, I said: Oh, I don’t like you anymore. Then I might not necessarily get the ring back because now I was the one that broke it off, whereas if I found out all of a sudden that my bride-to-be has been cheating on me and she ends up breaking it off because she wants to run off with this other guy, then I might get the ring back. Here’s another situation where conceivably having an agreement in place might help. It sounds a little strange to me. I don’t think I’ve ever actually seen a situation where somebody had a contract about an engagement ring because I don’t think anybody’s thinking we might break it off before we even get married when you give her a ring.
Shelley Rosas: No, I’m thinking I would give the engagement ring back if I had to sign that agreement.
David Enevoldsen: Yeah, I know. Which goes into kind of the traditional discussion about prenups. I’m not sure how you would have a cohabitation agreement in an ideal legal universe. If I’ve got the problem coming across my desk I think it would be great to have all that in writing because that would really clarify things, but I think traditionally you’re just looking at these concepts that we would drag over and port from other states is that it’s a conditional gift and if it doesn’t culminate in marriage and it’s not the guy’s fault, assuming the guy’s the one that gave the ring, then he would give it back. Conversely, if it’s future husband’s fault then the wife would get to keep the ring.
So, that is about all the time we have for today’s show. You’ve been listening to Family Law Report. I am your host, David Enevoldsen, an attorney with the Family Law Guys, an Arizona law firm here. I’ve had with me cohost Shelley Rosas and we have been talking about non-marital cohabitation situations. I hope you join us again next week on Sunday at noon for more on the latest on family law here on Independent Talk 1100 KFNX. If you want to reach out to us you can reach us at 480-565-8680 or you can check us out on our website at www.familylawguys.com. Thank you all for listening.
Announcer: Family Law Report is hosted by Family Law Guys, an Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems with the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more, or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That’s 480-565-8680.