Page 452 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

Because of the average duration of cohabitation, these children face a higher
risk of family disruption than do those living with married parents. About 50% experience

family breakup by the age of five (versus 15% for children in married couples). Again,
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this differs by race. Stability, of course, is very important to the welfare of children,

so we should be concerned about the impact of cohabitation on them.
The impact of parental cohabitation on children is a subject that has attracted

attention from social scientists. Some studies correlate parental cohabitation with
emotional and behavioral problems in adolescents and school problems in younger

children. This may in fact be no different from the effect of divorce and remarriage on
children of married parents, however. In the face of this evidence, I argue that legal
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reforms with respect to cohabitation should aim to make these unions stabler and to

support them rather than treat them punitively.

II. Legal Treatment of Cohabitation in the United States

The legal treatment of cohabitation in the United States has traditionally been
quite punitive. In the past, cohabitation was criminalized. Although that era is behind

us, legal provisions governing cohabitants remain notably punitive. In Section A below,
I first discuss the current law, subdividing it by jurisdictions that refuse to recognize

cohabitation for any reason, those that allow cohabitants’ contracts, and the one state
that applies an approach that automatically imposes a legal status based on certain
defining characteristics. None of these general approaches pertains to the treatment of

cohabitants by third parties and the state, although there are a few exceptions based on
case law or local ordinance. In Section B, I discuss problems that result from the failure

of U.S. law to provide more generous treatment of cohabiting couples, problems that
are exacerbated by the presence of children in their households.

18 Wendy Manning et al., The Relative Stability of Cohabiting and Marital Unions for Children, 23
Population Research & Policy Review 135, 146 (2004).
19 Marion C. Willetts & Nick G. Maroules, Parental Reports of Adolescent Well-Being: Does Marital
Status Matter?, 43 Journal of Divorce & Remarriage 129, 144 (2005).

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