Georgia Cohabitation Laws: What to Know

What You Should Know About Cohabitation in Georgia

Understanding Georgia Cohabitation Laws: What You Need to Know
Cohabitation is a familiar concept, often referring to two people living together in a romantic relationship for an extended period of time without being legally married. While most people have a general understanding of cohabitation, many are not aware of the specific laws and implications associated with it. This is particularly true in Georgia, where cohabitation can impact the equitable division of property during divorce, child custody, alimony, and individual rights when one person in a cohabitating relationship passes away.
Understanding cohabitation in Georgia is especially important for those who have children. Cohabitation can affect factors such as child custody and visitation, as well as financial factors such as child support and alimony. If you decide to live with a partner in Georgia without benefit of marriage, it’s crucial to know how the law will view the situation.
Cohabitation also matters when it comes to spousal support . In Georgia, one of the triggers for a downward modification in alimony owed to a spouse is evidence that the recipient spouse is living with a person of the opposite sex and has had sexual relations with this person. Under a Georgia statute, this is evidence that the recipient spouse needs less alimony due to the relationship, and can be used to request a reduction in spousal support. Cohabitation in Georgia is defined as "split habitation".
Cohabitation and the Georgia Wrongful Death Act
If you’re involved in a wrongful death claim, your level of cohabitation with the deceased can help reduce damages for loss of services, society, and companionship. This is known as loss of consortium. While you won’t need to prove that you were legally married to the deceased, you will need proof of a romantic relationship. Cohabitation can demonstrate that your relationship was intimate and beneficial, and a Georgia attorney can help you prove that your relationship was deserving of damages.

Cohabitation in Georgia: Legal Definition

The legal definition of cohabitation in Georgia is a specific but not always straightforward concept. Cohabitation is considered a form of consensual living arrangement between two individuals, typically in a romantic context. From a legal perspective in Georgia, cohabitation does not imply any level of financial or emotional commitment equivalent to that required for marriage. The absence of an official governing document like a marriage license means that cohabiting couples do not have the same rights and obligations towards each other as married couples.
Legally, cohabitation does not create any presumption of joint assets or debts. Each party remains legally responsible for their own individual income and debts acquired independently of the relationship. However, joint assets obtained during the relationship may be subject to division upon separation, similar to how marital property would be divided per Georgia divorce laws.
In Georgia, the law seeks to protect spouses from losing alimony or inheritance rights due to an ex-spouse’s cohabitation. On the other hand, it may open the door for cohabitating couples to dispute the other’s interest in property, which could be considered to belong to both. In that regard, the law concerning cohabitation serves to clarify the legal status of joint assets and liabilities acquired during a cohabiting relationship. Still, it may not always provide the same protections and benefits offered to legally recognized marriages.

Georgia Cohabitation Agreements

In Georgia, cohabitation agreements are often used to outline the rights and responsibilities of unmarried couples living together. These agreements can help to avoid misunderstandings and disputes related to property, finances, and other matters that may arise during or after a relationship.
The purpose of a cohabitation agreement in Georgia is to define the terms of a cohabiting relationship and to provide both parties with legal protections. These agreements typically include provisions about how property will be owned and divided, how debts will be paid, and how expenses will be split. They may also address issues such as child custody and support, pet ownership, and the process for resolving disputes.
Having a cohabitation agreement in place can protect the rights of both parties by clearly defining their respective roles and responsibilities in the relationship. For example, if one party owns a home, a cohabitation agreement can specify whether the other party has any claim to the property. It can also help to clarify financial responsibilities, such as how household expenses will be shared and how debts will be repaid.
If a couple separates, having a cohabitation agreement can help to avoid disputes over property and financial matters. In the absence of an agreement, the parties may have to rely on Georgia’s equitable distribution laws to determine how assets and debts should be divided. However, under OCGA 19-3-66, if one party is able to demonstrate the existence of an enforceable contract, even if it is not in accordance with the Statute of Frauds, it will most likely control the distribution of property and debts.
Overall, cohabitation agreements in Georgia can help to provide clarity and legal protections for both parties in the relationship.

Effects on Child Custody and Child Support

In Georgia, an updated income deduction a part of which shall be allocated to any arrears of child support is deducted from the non-custodial parent’s disposable income. Disposable income means the income remaining after legal deductions (For example, insurance premiums). These deductions include but are not limited to, the following:

• (1) Federal Income Tax Withholding Allowances;
• (2) Federal Insurance Contribution Act (FICA) or other retirement plan contributions required by law;
• (3) State Income Tax Withholding Allowances;
• (4) Mandatory retirement contributions for state, county, municipal, or other government employees; and
• (5) Such other deductions which the court determines are being taken in accordance with the written policies or prevailing practices of the payor’s withholding entity.

When it comes to child custody, Georgia courts will consider cohabitation in the context of determining if they will allow a custodial parent to modify the child support obligation. However, Georgia does not allow income to be imputed based on cohabitation of a recipient parent. That means the court cannot treat a custodial parent like he or she is working because they share the expenses of a household and as a result, would otherwise be paying more in rent or mortgage payments. For example, the court will not impute an award of one-fourth the average cost of the parties’ respective input to the expense of food, diapers, medical care, and the like for the children whom they have in common but whom they have exchanged for services and goods with regard to the children with each person paying one-fourth of the average cost of acquiring and maintaining their respective portions of said goods and services.
The Georgia Court of Appeals found in the case of Barnett v. Barnett in 2001, that income could not be imputed upon a non-custodial, "Related to whether the non-custodial parent makes sufficient good faith efforts to obtain employment on a continuous basis."
The court also found that "There was no evidence of the non-custodial parents’ unemployment being ‘the direct result of their inability to locate employment.’ The non-custodial parent’s relatively low earning capacity was directly attributable to [the] voluntary decision to not maintain a full-time job rather than any special employment circumstances beyond their control. Thus, the court did not abuse its discretion by declining to impute income to the non-custodial parents." In Conclusion, cohabitation does not establish grounds for deviation from guidelines.

Division of Property and Assets for Unmarried Couples

Georgia law provides no clear guidance on how to divide properties or assets between unmarried couples who have been living together in a cohabitating relationship. Since Georgia does not consider cohabitation a marriage, unmarried couples cannot generally file for divorce. In instances where a cohabitating couple owned property together, filed joint tax returns or bank accounts, or co-signed loans, the need for a legal separation and equitable distribution of their property may arise.
The courts will enforce any agreements made by the partners to divide their property, but will not set aside property into certain shares during a period of separation without a written agreement in place. In the absence of a written agreement, the courts will look at the property title as it appears in the deed. When both former spouses hold property as tenants in common , they will each receive a 50/50 split of the property and or assets.
When one cohabitating partner financially supports an unemployed or underemployed and jobless partner during the relationship, the supporting partner has a greater claim on their assets and properties than the partner with steady employment. The supporting partner may also be able to collect spousal support or alimony if the court agrees that the other former partner took advantage of their advantages or incurred debts.
The laws governing cohabitation with regard to equitable distribution in Georgia are complex and can lead to above-average court expenses for unmarried couples who did not keep accurate records of assets acquired during the relationship and did not seek legal counsel on how to best divide their property beforehand.

Impact of Cohabitation on Alimony

Georgia’s alimony laws are clear on the issue of what happens to an alimony award in the event of the recipient’s cohabitation. Pursuant to O.C.G.A. 19-6-5(a), the cohabitation of the recipient of alimony with a third person will serve as a basis for a modification of alimony if the Court finds the cohabitation support a greater financial benefit than would have resulted from a legal marriage.
In order for cohabitation to be relevant, it must be material to the award of alimony. The courts find that there are three primary elements which will dictate the effect that cohabitation will have on alimony; these include whether the parties lived together during the time they were married. Whether the parties to the current marriage who were formerly cohabiting now have a child. Whether further investigation into the new relationship is required.
If the parties lived together during the time of the marriage and this is why the marriage is over, then the cohabitation may not have a big effect when determining the amount of alimony with the new relationship playing a part in the decision. If the second element is met and the parties had a child together while cohabiting, then the court will likely find that the new relationship is strong enough to support modification or termination of alimony.
When the court is making a decision regarding termination or modification of alimony, evidence must be presented regarding a number of factors. The court will look at whether the payer can bear the financial burden of continued alimony. It will look at whether the recipient actually needs the support payments. Is the recipient able to support him or herself financially. Have the needs of the recipient changed. Have the resources available to the recipient changed. Has the payer incurred new liabilities.
The courts find that a material change in circumstances shall exist whenever the original agreement was based upon a set of prevailing conditions, those conditions have subsequently been altered due to no fault of the party seeking the modification, and the change is so great and unexpected that it would be inequitable to retain the original agreement (Canakaris v. Canakaris, 382 S.E. 2d 120, 263 Ga. 586 (1989). There must be a break in the cohabitation before the court will consider modification.
While cohabitation affects alimony, the dissenting judge in O’Keeffe vs. O’Keeffe found that an alteration in the alimony award is not applicable until the new cohabitating relationship is established. In the case, the Wife was living with a man during the divorce proceedings and throughout the pendency of the appeal. The Court did not find that a change in facts was warranted because the relationship should not matter until the divorce was final.

Emerging Trends and Changes in the Law

While cohabitation agreements such as separation agreements are common in today’s society, it is unclear whether and how such agreements would be upheld in Georgia. The most direct legal source on this issue is Georgia’s "Cohabitants’ Interference with Visitation" statute which provides that any cohabitant that:
"Enticing, taking away, withholding, or retaining the minor child or minor children of any other person" constitutes unlawful interference with parental rights. The statute continues: "It shall be prima facie evidence of intent to cause unlawful interference with parental rights when it is shown that the cohabitant employed means by which a reasonable parent could not reclaim or control such minor child or minor children."
It is anticipated – and perhaps hoped by many – that the Georgia General Assembly will clarify this statute in this year’s legislative session. Potential legislation includes broadening the definition of cohabitant to persons who have been in an intimate relationship for six months or longer, defining cohabitation and specifying "enticing, taking away, withholding, or retaining" language.
A potentially relevant federal case addressed a complaint by a father against a mother and her boyfriend for false imprisonment and intentional infliction of emotional distress based on his allegations that they kept his children from him and that these acts were the equivalent of kidnapping. The matter arose because the mother, who was in the middle of custody litigation with the father, submitted to a drug test which revealed she had ingested drugs or alcohol and, shortly thereafter, both the mother and the boyfriend left the home without the father or the children.
The Court held that a false imprisonment could be considered intentional infliction of emotional distress, and while the Court dismissed the false imprisonment claim, alleging such conduct might be sufficient to constitute infliction of emotional distress. Nevertheless, the Court refused to enforce contempt sanctions against the father for allegations that his children were not returned to him since the trial court had not established a clear custody order.

Conclusion: Cohabitation Clarified

In conclusion, Georgia’s cohabitation laws can be complex and challenging to navigate. As a general rule, it is best to discuss your situation with a family law professional before making decisions that could potentially affect your divorce or custody determination, properties division, inheritance rights, alimony, and more . While there are no laws in Georgia that specifically govern cohabitation between unmarried individuals, couples must take care to understand how their decisions will affect any existing or pending legal proceedings. Cohabitation can end up destroying the alimony, division of assets, and visitation rights you were hoping for if you are not careful. That’s why it is so important to familiarize yourself with Georgia’s laws regarding cohabitation and its consequences.