It’s hard enough to divide up your property when you are ending a marriage, but there are clear rules and laws about what property is subject to division and how it is to be split. But the property rights of cohabitants who are not married are somewhat murkier.
This was illustrated recently by the 2022 Ohio Eighth District Court of Appeals case of Mundy v. Golightly (2022-Ohio-83). In that case, plaintiff Adriana Mundy brought a lawsuit against defendant Matthew Golightly, with whom she had cohabited from about September 2014 until May 2019. Mundy was seeking partition of personal property. The personal property in question was a beagle named Mochi.
Mundy had bought the beagle, obtained its dog license in her name, and had it microchipped. While living together, Mundy and Golightly shared responsibility for the dog’s care and related costs. But once they separated, Golightly would not let her have access to Mochi. So Mundy sued, seeking the equitable remedy of “partition.” An equitable remedy is one that resolves a problem by action, rather than by awarding money. In this case, Mundy was seeking the right to see the dog.
Mundy stated that she and Golightly “have been co-owners” of the dog. The trial court dismissed her complaint against Golightly on the grounds that she had not stated a claim recognized under Ohio law. Mundy had not stated any facts other than cohabitation to establish co-ownership. The Court of Appeals agreed with the trial court, noting that Ohio law “does not permit a division of assets or property based on cohabitation,” citing Lauper v. Harold, 23 Ohio App. 3d 168, 170, 492 N.E.2d 472 (12 Dist. 1985).
What Are the Personal Property Rights of Cohabiting Couples?
Ohio law does not establish one comprehensive mechanism for courts to divide property between unmarried cohabitants, as it does for married couples. A court might partition property if the person seeking partition could prove facts supporting co-ownership, other than that the couple lived together when the property was acquired. A partition action is brought when parties own real estate together, or for division of personal property when receipts showing that both cohabitants had contributed equally to the purchase price of an item that would support co-ownership.
Interestingly, Adriana Mundy did not allege in the case above that Mochi belonged to her, and that Matthew Golightly converted (stole) the dog. Had she done so, she might have had a better chance of getting the dog back.
There are some lessons for cohabiting couples from the Mundy case. Understand that for married couples, almost all property either partner acquires during the marriage is subject to division in divorce. The same is not true for cohabiting couples: mere cohabitation does not create co-ownership. If you want a court to award you certain property, you need to be able to state a claim based on your ownership of the property, or co-ownership that was created by something other than simply living together as a couple, like a contract, and then to offer proof of co-ownership. Even if a couple doesn’t have a formal contract with one another, courts can award property to one or both of them based on contract principles.
There are other equitable principles a court could use to award property to one member of a former cohabiting couple. For instance, if Mundy had asserted (and ultimately proved) that she was Mochi’s owner, she could have sought replevin (restoration) of her property. And if someone transferred property to their live-in partner based on a promise to marry that was not fulfilled, they could seek return of that property on the grounds that the partner who received the property would be unjustly enriched if they got to keep it.
All of these remedies require someone to ask a court to take action by filing a complaint. That can be time-consuming, expensive, and stressful. A better option, if possible, is to discuss how you want to handle property issues before moving in together. A cohabitation agreement will not eliminate the possibility of later litigation, but it will reduce the likelihood of a dispute ending up in court. Having an agreement also ensures that you are on the same page about things such as how expenses will be shared, which helps to avoid confusion about expectations.
Real Property Rights of Cohabitants
Personal property includes things like furniture, jewelry, household items, and pets like Mochi the beagle. Real property is land and the buildings on that land. In Ohio, the law favors married couples over cohabitants with regard to real property, just as it does with personal property.
For example, both real property and personal property acquired during a marriage by either spouse must be divided equitably between them in a divorce. If one spouse wants to sell or mortgage real property they own during the marriage, they cannot do so without the other’s knowledge and consent. If a marriage ends with the death of one spouse, Ohio law also provides the surviving spouse considerable real property protections.
Unfortunately, the same is not true for cohabiting couples. However, creating a cohabitation agreement can create protections for unmarried partners’ interests in real estate and personal property, similar to the protection married couples receive under the law.
No one wants to think about the possibility of a relationship ending, especially when you’re basking in the excitement of first moving in together, or of the death of one of the cohabitants. But thinking about and discussing what could go wrong can help ensure that it doesn’t. And if the relationship doesn’t work out despite your best efforts, having an agreement will help you separate with less stress and more of your property. Making sure that a death of one cohabitant does not automatically mean the other person loses their home can be achieved with planning through a cohabitation agreement and other documents.
If you are thinking about moving in with a partner, or have more questions about the property rights of unmarried people living together, contact Melissa Graham-Hurd and Associates to schedule a consultation.
