Today, 19 million US adults are cohabiting with an intimate partner. Yet family law continues to struggle with the question whether these unmarried partners should have relationship-based rights in one another’s property. Generally speaking, states answer ‘no’. Because cohabitants are not spouses, they’re treated like strangers. As a result, their property rights usually follow title, and richer partners tend to walk away with a large proportion of the property acquired during the relationship.
This Article shows the ‘cohabitant problem’ to be no anomaly, but rather the clearest manifestation of family law’s overarching structure. In marital property regimes as well as in cohabitant disputes, states and scholars have taken title as both a starting and a presumptive ending point, which means that assigning property rights in any other way is ‘redistribution’ requiring special justification. This deferential approach to title limits family law’s ability to achieve sharing outcomes, not only between cohabitants, but also between spouse …
Stolzenberg, Emily, Properties of Intimacy (August 4, 2020). Maryland Law Review, volume 80, 2021.