Cohabitation, Common Law Marriage, and Spousal Support

Common Law Marriage, Cohabitation, and Spousal Support

Do you still have to pay spousal support when your ex starts living with someone? Will you be able to count the time you and your partner lived together in calculating alimony when you get divorced? Could you ever accidentally become married in Michigan under common law marriage rules? Find out how Michigan law treats cohabitation, common law marriage, and spousal support.

Common Law Marriage Doesn’t Exist Anymore in Michigan

It used to be, you could accidentally get married to a person just by acting like you were already married. If you lived together, called each other husband and wife, and treated yourselves as a couple, you could, over time, fall into what is considered a “common law marriage”.

Then in 1956, Michigan changed its law to eliminate the possibility of accidentally becoming married. The law now says:

“So far as its validity in law is concerned, marriage is a civil contract between a man and a woman, to which the consent of parties capable in law of contracting is essential. Consent alone is not enough to effectuate a legal marriage on and after January 1, 1957. Consent shall be followed by obtaining a license…”

MCL 551.2

In other words, unless you and your partner sign and file a marriage license, you won’t be considered married in Michigan.

This has up sides and down sides. The down side is that you are not entitled to the protection of nearly 6000 state and federal laws that rely on the terms “spouse”, “husband”, or “wife”. If something happens to you or your “hubby” or “wifey” before you sign and file the marriage license, you won’t be considered a spouse at the hospital, or when it comes to inheritance. You won’t be able to file taxes jointly or buy homes as “tenants in the entireties.” There are ways around many of these restrictions for couples who intentionally don’t want to get married. But as many same-sex couples can attest, getting close to married can be cumbersome, complicated, and costly.

Another downside that many couples discover is that when they eventually do marry, none of the time they lived together counts toward the marriage. The length of the marriage is one factor considered in awarding spousal support and dividing marital property. Anything owned by either party before the date of the legal marriage is considered premarital and belongs to that party. That means if you lived together in a home owned by one spouse for 10 years, got married for 1, and then got divorced, the spouse who didn’t own the home will have a tough time arguing for any interest in that home.

This also affects spousal support. As a general rule of thumb, spousal support won’t be awarded in short-term marriages under 10 years, unless there are other reasons (like if one spouse has become disabled during the marriage). The time you lived together before the marriage doesn’t count. So in the above example, the couple may have been together for 11 years, but only 1 of those years will count toward the length of the marriage and the calculation of spousal support.

Court Considers Religious-Only Marriage and Spousal Support

One recent Michigan Court of Appeals decision found a silver lining to the concept of living together without getting married: the continuation of spousal support. In Lueck v Lueck, the parties were married for 29 years, from 1985 through 2014. They had two (now adult) children and collected a sizeable marital estate. In the process of negotiating the terms of the divorce, the parties agreed that Mr. Lueck would pay Mrs. Lueck $10,000 per month for 10 years or until Mrs. Lueck died or remarried, whichever happened first. This spousal support “shall not be modifiable as to amount or duration.”

Then, one year later, Mrs. Lueck met Matthew Bassett, and the two began dating. Later that year, they participated in a Christian “commitment ceremony” at her church. The pastor performed the same religious ceremony as a wedding, but did so without witnesses. No one signed a marriage license.

When Mr. Lueck found out, he went back to court asking the judge to terminate his requirement to pay spousal support. But Mrs. Lueck had “done her homework”. She said that what she had done was not a legal marriage, so spousal support should continue even though she and Mr. Bassett were now behaving as husband and wife.

The Court of Appeals agreed with Mrs. Lueck. Citing the statute quoted above, it said that a religious ceremony wasn’t enough to trigger the language in the couple’s consent judgment of divorce. Marriage meant legal marriage, and that meant a marriage license needed to be filed.

Cohabitation and Alimony

If this answer doesn’t seem fair, consider this: the parties could easily have agreed to different terms in their consent judgment of divorce. The language in their settlement agreement only listed two conditions for terminating spousal support: death and remarriage. What if they had included cohabitation as well?

A lot of divorce attorneys are starting to do just that. Modern couples are choosing to delay marriage for a lot of reasons, including perpetuating spousal support awards from prior marriages. When couples cohabit (live together), they often share expenses, mingle their incomes, and do all the same things that justify cutting spousal support off at the point of remarriage. If the concern behind spousal support is providing for the lower wage-earning spouse, why not cut it off once those financial needs are met?

This was certainly the case in Lueck. Mrs. Lueck told several witnesses, even her own pastor, that the reason she was not getting a legal marriage was so she could continue to receive spousal support. The trial court said this wasn’t equitable. It certainly didn’t feel fair to Mr. Lueck. But if he and his attorney had thought ahead a bit more, they may have been able to close the loophole Mrs. Lueck found that let her live with one husband while getting paid by another.

Lisa J. Schmidt is a divorce attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She represents men and women seeking to end their marriages without unnecessary conflict. If you need help negotiating a consent judgment of divorce, contact Schmidt & Long now to schedule a free consultation.


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