Couples Need to Know Rights
There may or may not be emotional differences between married and unmarried couples. But there certainly are legal differences.
Marriage is essentially a legal contract, established and sanctioned by the government. There is not usually a signed agreement, but state law sets up the rules of the contract. One of the vital elements of the legal relationship in California is community property. Husband and wife each have a full and equal interest in all of the earnings and other property acquired during the marriage. There are exceptions, for instance property purchased with separate funds obtained before the marriage, but that’s the basic rule.
An unmarried couple does not have the right to own property as community property, although they can agree in writing to share their goods in much the same way. On the other hand, a married couple can agree in writing to change what would otherwise be community property. So whether you are married or not, you have the right to enter into a written contract to devise your own arrangement regarding property ownership.
In either case, you can hold property in joint tenancy, where the surviving person automatically inherits the property upon death, or as tenants in common, where each party can arrange for the transfer of a share after death.
If the parties break up, a divorce proceeding determines the property division of a married couple. An unmarried couple can also seek a court proceeding, to “partition” or split certain property. It is very wise for an unmarried couple to have a written agreement ahead of time to resolve any ownership disputes if the relationship ends.
When preparing such an agreement, some of the issues to consider: who will pay to maintain the property, what happens if you want to use the property as security for a loan, who will make payments on such a loan and how will the property be sold. Obviously, divorce, or “marriage dissolution” applies only to the married. An unmarried couple cannot get a divorce. That means an unmarried breakup will not include spousal support, unless of course there was a contractual commitment for it.
Married people can file joint income tax returns, but not the unmarried. And every once in a while, the tax court has had to decide whether a couple filing a joint return was actually married.
There are other legal differences. A surviving spouse is eligible for Social Security benefits. The survivor of an unmarried relationship is not. The same is generally true for pension benefits as well.
Under the copyright law, a widow or widower has certain rights to own and renew a copyright. Of course, you can’t be a widow or widower unless you have been legally married.
Under the rules of evidence, certain communications between husband and wife are confidential and can be kept out of court. That’s not so with respect to communications between a couple that is living together.
Nolo Press, the Berkeley self-help law publisher, has three books on related subjects that might be of interest: California Marriage and Divorce Law ($19.95); The Living Together Kit ($17.95) and A Legal Guide for Lesbian and Gay Couples ($17.95) To order one, call (800) 640-6656.
Klein is an attorney and president of The Times Valley and Ventura County Editions. Brown is professor of law emeritus at USC and chairman of the board for the National Center for Preventive Law. They cannot answer mail personally but will respond in this column to questions of general interest about law. Do not telephone. Write to Jeffrey S. Klein, The Times, 9211 Oakdale Ave. , Chatsworth, Calif. 91311.
