Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

When It Comes To Breaking Up, Is It Better To Be Married or Just Living Together?

I had a discussion the other day with a colleague about whether it is better to be married, or simply cohabitating, when a long-term relationship comes to an end. That is, are there advantages to a divorce, even with all its stresses, when severing a relationship versus what couples that have lived together, accumulating assets and offspring, go through dividing up the products of their relationship? 

I stated that a married person is more assured of an equitable resolution through a divorce than people who have lived together but never married. My colleague countered that an “equitable” resolution is subjectively determined by where each participant sits financially vis à vis their former spouse/housemate. Namely, when it comes to dividing up the property, if one party contributed a much greater share of their cost, that person might likely wish that they were ending a long-term cohabitation rather than divorcing a spouse.

Before delving further into that, let me outline some general considerations. In Missouri, there is no such thing as a “common law” marriage, where if a couple lives together for a prescribed period of time, they are recognized as married and each participant has the same rights and obligations as persons formally wed.

In addition, when it comes to the support and custody of children borne of a relationship, the law doesn’t differentiate between parents, married or unmarried, with one exception. When married couples divorce, the court assesses each parent’s support obligation from the date of the dissolution. With unmarried parents, the court will also allocate the child rearing costs of the preceding five years, including birthing expense, between the parties.

Lastly, when a couple (married or otherwise) enters into a formal contract, such as a pre-nuptial agreement, that agreement will likely control the division of their estate, assuming the agreement isn’t patently unfair and was made with full disclosure by the parties.

Relatively few couples have such agreements, though. The rest of us muddle ahead on the implicit assumption that the union will never end, but if it did, we would surely be fair to each other. Ah, that is rarely the case; most relationships end with the parties arguing over what each is entitled to.

In Missouri, the law imputes a business partnership to the married couple, assuming each to be equal partners. As such, the court will usually divide the marital property roughly 50/50, no matter how disproportionately one spouse may have contributed financially to the marriage.

Contrast that with how the courts would approach a disagreement between two people who have lived together and accumulated assets throughout their relationship. Absent an agreement between the two that governed the division of the property, the court would try to discern how much each person contributed to the property’s acquisition. If one or both individuals kept accurate records of their most significant purchases and each person’s role in financing them, the court would likely be influenced by that evidence.

Alas, many unmarried couples are not so meticulous. In that circumstance, the court would look to each person’s earnings during the relationship as well as to his or her financial worth and divide the property proportionately. Thus, in a relationship where there has been a substantial disparity in financial contributions, the person making the larger contribution may wish they were exiting a cohabitation, while their mate would favor leaving via a divorce.

One last thing: In Missouri, no one has ever been awarded “palimony”, the colloquial term for the financial maintenance of one party by the other when a unmarried coupling ends, although spousal support can be included in divorce decrees. Between the “haves” and the “have-nots”, this is one more reason why one person might prefer to live together, while their other half would insist on marrying before moving in.