A recent study was published by the Center for Disease Prevention and Control which indicated that depending on race, socio-economic class and age, living together before actual marriage may be beneficial to the longevity of the marriage.  However, there were other sources who conducted similar studies which rendered very different results.  Grant it a myriad of factors were considered, i.e. whether the couple was actually engaged while they were cohabitating, that impacted the varying results.  However, either way the fact remains that there is more to predicting the strength of a marriage than whether a couple actually lives together beforehand.  Moral values, religious and spiritual beliefs and personal views on family and marriage play a much more significant role than these external factors. 

     There is usually some hidden agenda in publishing most of these studies/surveys, hence the disparity in the results.   In addition, many of these reports have an interest in disseminating information that promotes their own platform.  My aim here is to highlight how New York laws, courts, law enforcement and social agencies differs in their message by how they favor either a married couple or a cohabitating one.  Let’s take a look at the laws that apply to couples, to keep it simple I will focus on heterosexual couples.  Both childless couples and couples with children, are subject to laws pertaining housing, criminal, family law, elder and consumer law on the state level, there are federal laws that broaden the areas of law to immigration, bankruptcy and tax law.  The manner in which these laws affect couples differ depending on their marital status, which includes divorce but we will not spend too much time on that category.

     Criminal laws like domestic violence, fraud, sexual assault and harassment vary in their application based on the marital status of the parties.  In New York, domestic violence infractions, which include harassment, menacing, assault/battery and contempt, in substance may be brought against parties whether married or not.  However, the penalties for these crimes vary depending on their status.   For instance, if there is a final Order of Protection issues at the disposition of the criminal case, there may be stipulations or conditions included which take into account the fact that the parties are married.  Restrictions, which are typically more broad when the parties are married, may permit contact between the parties in very specific circumstances while cohabiting parties may not be given such consideration.  In fact, if a Family Court Order of Protection arose out of the domestic violence incident, up until recently cohabitating parties were prohibited from obtaining such Order if they did not have a child in common.

     In family law matters, such as child support, child custody or child visitation, being married versus merely cohabitating also results in varying treatment.  For the most part, family law issues are dealt with in Supreme Court (only if the parties are divorcing or were recently divorced) or in Family Court (although married parties may have their family law case heard here, cohabitating parties must have their case heard in this venue).   Let’s take child support, if the parties are married and the child is born while the parties are married, there is a presumption that the child is of the marriage and therefore the financial responsibility of the married parties.  Conversely, there is no such presumption where the parties merely cohabitate, the custodial parent has the burden of proving paternity (unless there is a valid acknowledgement of paternity).  In child custody cases, although there is no explicit difference in how the courts treat parties that are married as opposed to those cohabitating, some judges, attorneys and forensic experts, will give much more careful scrutiny to both parties when the family is more intact, and hence married.  Specifically, the judge may consider the fact that both parents may intend to stick around for the long haul when they are married, and therefore factor the impact of having two active or present parents in making the child custody determination.  A cohabitating parent may not get such significant consideration, with the assumption being that since he or she made no commitment that their future intentions are more elusive.  This is typically the same thinking with regards to child visitation, with a much more profound difference being in a situation where the non-custodial parent is the party that is married as opposed to cohabitating.  In that case, the court will most definitely weigh the fact that the non-custodial parent is married, giving less weight to him or her if they are cohabitating. 

   Wills, power of attorney or deeds also differ in effect when the parties are married.  These documents, in New York, are developed separately and specifically with regards to parties’ marital status.  The inchaote rights, tax implications and possessory interests under each of these legal documents will differ based on if the parties are married at the time of their drafting. 

     Although it may be legally beneficial for some to marry, for others cohabitating is preferred as a matter of economic convenience.

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