Cohabitation Agreements

Although many people don't realize it, marriage is a legal contract between two people. It defines the rights and obligations that each party owes to the other.

Unmarried couples can also create contracts that define the rights and obligations of each partner. These contracts go by various names. They are often referred to as:

  • Cohabitation agreements
  • Non-marital contracts
  • Living together contracts

This article discusses what cohabitation agreements do, how to decide if you need one, and how to create one.

What Do Cohabitation Agreements Do?

Cohabitation agreements can help unmarried partners or cohabiting couples set the rules for their living arrangements. Moreover, cohabitation agreements aren't exclusive to couples with sexual relations. They can also serve as enforceable contracts between roommates. This can help to prevent any potential disagreements down the road.

These agreements can offer both parties peace of mind. Such a legal document can establish expectations about financial support. If you break up, this contract can determine how shared property, like bank accounts or pets, will divide up. These contracts function like prenuptial agreements. They set forth how to handle money, property, debt, etc., during and even after the relationship ends. It may seem unromantic to ask your partner to make a contract with you. But, in the process, it will tell you a lot about yourself, your partner, and the maturity of your relationship.

Deciding Whether You Need a Cohabitation Agreement

It doesn't make sense to enter into a non-marital contract in every relationship you may have. You would make quite the impression showing up to a first date with a pen and paper in hand. Living together agreements are more appropriate for long-term relationships. You expect significant money, property, and debt to accumulate in a longer relationship.

These agreements may also be a good idea for older couples to ensure that property is distributed upon their death as they wish. Finally, couples who don't believe in the institution of marriage should strongly consider such an agreement. Even if you're morally or philosophically opposed to marriage, defining the relationship's rights and obligations is smart.

Cohabitation agreements can sometimes be compared to prenups for married couples. These contracts benefit cohabiting partners in states that don't recognize common-law marriage. In these jurisdictions, it can be difficult for an unmarried person to claim any legal rights to shared property or request alimony (also known as spousal support) without a written agreement.

The Legality of Cohabitation Agreements

Contracts that function similarly to marriage between unmarried couples have not always been on sound legal grounds. But the uncertainty behind non-marital agreements ended in 1976. That's when the California State Supreme Court established the now widely held justification behind allowing non-marital agreements. In the case Marvin v. Marvin, the California Supreme Court held that:

  • Unmarried couples may enter into written and oral contracts that cover rights often associated with marriage. That includes rights to property acquired during the relationship.
  • Unmarried couples may create "implied contracts" or non-marital agreements without writing them down or speaking about them. Instead, a court can review the couple's actions to determine if such an agreement has been implied in their relationship.
  • If a judge finds no implied agreement, they can presume that the parties intended to "deal fairly with each other." The judge can grant one party rights and obligations consistent with equity and fairness.

Contents of a Cohabitation Agreement

Non-marital contracts don't need to be complex or contain legal-sounding language. It's better to make the agreement in plain language and include as much or as little detail as the couple feels is necessary. But having more detail may make resolving disputes later easier. Here are some items to consider:

  • Property accumulated during the relationship: It's essential to define how to treat property acquired during the relationship. For example, if one person buys something during the relationship, do both parties own 50% of it? Does whoever bought the property own it? What if the item is purchased using personal savings?
  • Property acquired by gift or inheritance: Generally, people keep items received as gifts or by inheritance as separate property. If you and your partner want to do this, you should write it down so there is no confusion.
  • Property from before the relationship: Many people like to keep items received before the relationship began as separate property. If you and your partner want to do this, write it down so there's no confusion.
  • Expenses: Make sure you cover how to pay expenses. This can be a huge area of disagreement, so it's important to write down the expectations. For example, you might split them 50/50, make them proportional to income, or pool your resources into one account and pay jointly.
  • Separation or death: Although you may not want to consider it, defining what happens when the relationship ends is important. It's important not to leave the status of property and money in limbo if a couple splits up.
  • Dispute resolution: If a dispute arises, couples may want to define how to resolve it. A typical example would include mediation or arbitration before taking the matter to court.
  • Child custody and child support: If a couple has children but decides to break up, a cohabitation agreement can include provisions about who will get custody of the children. The contract can also include how much child support to pay. It's important to note that while parents can make agreements about these issues, state law governs child custody and support. The courts always focus on the best interests of the child.

Call a Lawyer Before You Sign Any Cohabitation Agreements

With the increasing diversity of relationship types among couples, having a cohabitation agreement can help clarify issues and avoid problems. A lawyer can help you with valuable legal advice about your situation. They can tell you about your state, property rights, and cohabitation laws. Speak with a family law attorney today.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may want to consider creating powers of attorney or prenup agreements
  • Getting an attorney’s advice is a good idea if there are children or substantial property involved
  • An attorney can help you responsibly enter and exit cohabitation

Get tailored advice about property, finances, and child custody when living together. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Living with a partner is an ideal time to create or change your estate planning forms. Would you like to add your partner to your will? Also, consider creating a power of attorney so your partner can access your financial accounts and bills. A health care directive is necessary if you want your partner to make your medical decisions if you ever become incapacitated.

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