Law has mostly dealt with unmarried couples by adopting a wait-and-see approach. Rather than states passing legislation ex ante, courts address issues that arise ex post. Among the most commonly litigated questions is property ownership – where courts are asked to sort out who owns what and who owes what to whom. While much scholarship has considered how law should distribute such property, there is precious little information on what cohabitants themselves want. John Morley and Yair Listokin’s article, What Should You Owe Your Ex? A Survey of Attitudes About the Law of Married and Cohabiting Relationships, provides a timely and important intervention, offering an empirical assessment of what cohabiting couples, as compared to married couples, desire when their relationship ends.
Morley and Listokin thus seek to fill a gap not primarily in law (although that too), but in knowledge: “We bring these wishes into focus by directly asking people in a systematic way for the first time what they want for themselves.” (P. 37.) To do so, they surveyed a nationally representative sample of around 3,000 American adults, half of whom were married and half of whom lived with a partner in a nonmarital relationship.
There are a number of limits to a study like this, which Morley and Listokin readily concede. The paper is effective precisely because it is sanguine about its shortcomings, and candid about what the data set does not address. The survey responses do not provide much insight on race; only 120 of the respondents are Black, and the racial composition of the remaining respondents is undisclosed.[1] (P. 25.) The authors also cannot glean much from their LGBTQ respondents because of the way the data were reported. (P. 20 n.9). Such omissions are particularly significant given the prevalence of nonmarriage across these communities.[2] Perhaps even more fundamentally, Morley and Listokin foreground an endogeneity problem: “When we see that married and cohabiting people want different things, this may simply be because people who want different things from their relationship choose different types of relationships.” (P. 13.) A further chicken-or-egg complication is disentangling how law defines a relationship and the obligations that follow from how individuals themselves understand their relationship and the obligations that follow. That is, if law tells married couples they are entitled to something because of their marriage, then those who are married will respond in ways that reflect that entitlement; if law tells unmarried couples they are entitled to nothing because they are not married, then they will respond in ways that reflect that reality. The survey responses therefore become most indicative of what the law says, rather than what the couples want. This problem might be especially acute where, as here, the questions are framed through marriage – whether the respondents, married or not, believe that “different aspects of the law of marriage should apply to their relationship.” (P. 3.)
The data Morley and Listokin do collect is critical to examine, given the various ways the responses they garner can be interpreted and, eventually, operationalized. First, they find that both married and cohabiting people express agreement with awarding child support and dividing property equitably once the relationship ends. (P. 18.) There are, however, differences worth noting. Cohabiting couples express only 49% agreement with child support while 59% of married couples do; 43% of cohabiting couples agree with basic equitable division of property while that number is 72% for married couples. (Pp. 18-19.) Morley and Listokin point out that some of these differences might be explained by the demographic characteristics of the two cohorts. Married respondents tend to be older and better educated than those who cohabit. (P. 23.) They are also much more likely to be parents. (P. 15, Table 1.) The authors suggest that marital status still has independent force, a conclusion that would be bolstered by a direct comparison between parents – married and unmarried – in order to cleanly separate marital status from parenthood.
Second, the paper reveals that the most salient disagreement between married and cohabiting couples concerns the attitudes respondents have towards awarding alimony at the conclusion of their relationship. Alimony attracts 38% agreement among married couples and 20% agreement among unmarried couples; the disagreement might be more telling, in that 57% of unmarried couples oppose alimony while only 37% of married couples do. (Pp. 18-19.) Although law generally disfavors granting alimony at divorce, and couples at the end of a nonmarital relationship do not often seek its equivalent, the authors spend some time unpacking the delta in preferences because it “attracts the widest divergence of views among our respondents.” (P. 25.)
Morley and Listokin explain that being married and a parent are strongly predictive of a preference for alimony. (Pp. 27-28.) Within the married respondents, they further uncover a gendered distinction: Both men and women agree that alimony, along with other financial obligations, should be imposed on the man more than the woman in a different-sex relationship. (P. 20.) The women surveyed believe this to be true more than the men. (P. 22.) The preference for alimony becomes especially pronounced when the income between the spouses, or their “income share,” differs. (P. 28.) Specifically, the authors note that a spouse who earns no income expresses more agreement with imposing alimony obligations on the other spouse than does the spouse who earns all of the couple’s income. (Pp. 28-29.). Taken together, these findings suggest that the individual who is a lower-income earner, who appears more often to be a woman given the gendered break-down of responses, expects to receive alimony from the breadwinner, beyond what he is willing to give.
Interestingly, the authors observe that the gendered preferences based on differential income fade in the context of cohabiting couples, as do the gendered views of financial obligations generally. (P. 28.) Morley and Listokin reason that this result is consistent with cohabitants engaging in less role specialization throughout their relationship. (P. 29.) The paper’s “income share” variable, however, measures only earnings disparity, not specialization itself. Meaning, a partner with lower income might be unemployed, in school, earlier in their career, or a stay-at-home parent. As such, the relationship between income disparity and role specialization is worth further exploring, given that it raises a number of interesting possibilities that are not only, or even principally, explained by the relative degrees of specialization (presumed to be high in marriage and low in cohabitation).
For example, as Morley and Listokin remark, the less-gendered preferences expressed in the cohabiting context could be a function of couples agreeing to fewer obligations overall, making their potentially still-gendered preferences less obvious. (P. 22.) Or the income differential could be less predictive in the context of cohabiting couples because there are fewer assets to distribute (as seen by their lower average income). Or cohabitants’ income may be more uniform (accepting that there is some disparity), which coexists with, rather than contradicts, role specialization.[3] Or they might have lower expectations of their partner – either because they want less or because the legal regime signals they should expect less. These alternative explanations all show that the preferences cohabiting couples convey might reveal something other than an egalitarian attitude towards, or an actual egalitarian breakdown of, financial and nonfinancial contributions to the relationship.
Considering these varied accounts for preferences regarding property division and role specialization outside of marriage, and parsing the role that gender in particular plays, matter a great deal in thinking about law reform, as Morley and Listokin emphasize.[4] (Pp. 5–8.) If, say, cohabiting relations are in fact more egalitarian than marriages and the individuals within them have chosen a relationship form that reflects those values, then imposing laws that mandate sharing beyond their agreed-upon preferences would be inapposite and, where overriding explicit preferences, paternalistic. If, on the other hand, these cohabiting couples still hold gendered attitudes towards the division of labor that are being suppressed because they lack property to distribute, or because they believe they cannot expect anything from each other, then we might imagine a different set of law reform proposals taking hold.
To be clear, these findings do not have much to say about courts’ current gendered devaluation of domestic labor – other than to show that law might influence what kind of labor we think of as generating value. But, with reference to courts specifically, the data Morley and Listokin plumb demonstrate that in the rare situation where there is a written agreement between a cohabiting couple, it (unsurprisingly) positively predicts an expectation of alimony. (P. 32.) These agreements seem to reflect an understanding that there will be some degree of sharing after the relationship ends. Courts should therefore be cautious in refusing to enforce such agreements where they exist. Insofar as statutory reform is an option, Morley and Listokin argue that these responses indicate support for something like the Uniform Cohabitants’ Economic Remedies Act, which allows cohabitants to enforce claims generally available in contract and equity. (P. 37.)
Regardless of what path the law of nonmarriage ultimately takes, Morley and Listokin have provided a crucial intervention – by grounding discussions of reform in what individuals who are not married might actually want.
[1] See R.A. Lenhardt, Race Matters in Research on Nonmarital Unions: A Response to Amanda Jane Miller’s and Sharon Sassler’s “Don’t Force My Hand”: Gender and Social Class Variation in Relationship Negotiation, 51 Ariz. St. L.J. 1317, 1318 (2019) (“race matters in the important work being done on nonmarriage and [] we can learn a lot about race, inequality, and intimate choice by attending to it more intentionally”).
[2] Around 41% of partnered same-sex households are unmarried. See https://www.pewresearch.org/social-trends/2025/06/12/rising-number-of-u-s-households-are-headed-by-married-same-sex-couples/. While 57% of white adults are married, only 33% of Black adults are. See https://www.pewresearch.org/social-trends/2019/11/06/the-landscape-of-marriage-and-cohabitation-in-the-u-s/. Black adults are not, however, necessarily cohabiting at higher rates. See id. (noting that 8% of white and Hispanic couples are cohabiting and 7% of Black couples are).
[3] In Cohabitation Nation, sociologists Sharon Sassler and Amanda Miller consider the question of how middle- and lower-class cohabiting couples address the division of domestic labor. They found that the majority of couples surveyed tended to follow “conventional practices, where the woman does the bulk of the domestic labor,” which was even more pronounced among lower-class – which Sassler and Miller refer to as service-class – couples. The service-class women also worked outside of the home, although they typically made less than their male counterparts. Sharon Sassler & Amanda Miller, Cohabitation Nation: Gender, Class, and the Remaking of Relationships 75-76 (2017).
[4] See also Erez Aloni, Married by Default, 62 Osgoode Hall L.J. (2025) (analyzing the downsides of an opt-out system for cohabitants in British Columbia, drawing on interviews with thirty couples who cohabited between two to five years).
