Serving Clients Across Texas

How does premarital cohabitation affect division of marital property

The New Hampshire Supreme Court ruled that a court must consider time that a couple lives together prior to marriage as a factor in division of assets. The ruling, a landmark decision in New Hampshire, does not require a court to alter the division that the court seems fair in a divorce, but asks the trial judges to consider time that a couple, in this case a same-sex couple, lives together prior to getting married. In the case before the court, two women began living together in 1993 and were formally married in 2011 when same-sex marriage became legal in New Hampshire. One spouse filed for divorce, arguing that the marriage was a short-term one, but the relationship was a lengthy 21-year ordeal. This factor, the spouse argued, should be considered in reaching an equitable distribution. (New Hampshire has equitable distribution laws regarding marital property compared to Texas community property laws.) The Supreme Court stated that the New Hampshire law permits the court to consider “any other factor it deems relevant”, which in this circumstance should include the premarital cohabitation; however, the Supreme Court fell short of holding that the division or property or alimony awarded must change. The Supreme Court’s decision is not limited to same-sex couples, but any couple who had a lengthy premarital cohabitation.

Texas laws differ from New Hampshire in that we operate under a community property system. However, under the Texas standard, the court must make a division of property that the court deems “just and right”. Within that standard, the court can consider any number of factors to determine the appropriate division of the community property (property gathered together during the marriage). In this vague, nebulous standard could be the length of premarital cohabitation. Much as the New Hampshire Supreme Court points out, the vague standard allows for such consideration even if the consideration does not cause a change in the actual division of property.

Read: N.H. Supreme Court says divorce courts should consider premarital cohabitation