Cohabitation Agreements

Marriage laws give spouses legal rights and obligations toward each other. They also provide guidelines for the division of property if the marriage ends in divorce. They outline other responsibilities for the couple during and after a marriage.

Both partners must voluntarily agree to the cohabitation agreement terms and should seek independent legal consel. Contact a family law attorney in your area to ensure your agreement will stand up in court.

Unmarried couples in long-term relationships do not have these protections in the event of a breakup. Even if they're together as long as a married couple, unmarried couples don't have the same legal rights and financial responsibilities.

Some couples have philosophical or moral objections to marriage. Others don't want the legal entanglements of a marriage license. But if the relationship ends, unmarried couples in long-term relationships still need legal protection for their joint property.

Other Types of Civil Partnerships

Society has always recognized other kinds of partnerships besides formal marriage. One of the earliest, common-law marriage, is a remnant of English common law. A couple who lived together for a statutory period of time (as much as 20 years) and held themselves out as married during that time was "married" under the law.

Only a few states recognize common-law marriage today.

When same-sex marriage became a legal possibility, many states offered domestic partnerships and civil unions as a legal alternative. Not all states recognized these options until Obergefell v. Hodges legalized same-sex marriage in 2015. Many states converted domestic partnerships and civil unions to marriages or ceased recognizing the agreements.

In general, long-term relationships must have some kind of government recognition before the couple has any legal rights in court.

What is a Cohabitation Agreement?

Cohabitation agreements resemble prenuptial agreements. Like a prenup, a cohabitation agreement is a contract that establishes rules for property division, financial responsibilities, and other matters.

Some couples feel that a cohabitation agreement takes the "romance" or spontaneity out of their relationship. These are the same arguments against getting married.

However, if the relationship doesn't survive or if one person dies, a cohabitation agreement protects you and your partner from the legal issues that married couples avoid through marriage.

Who Needs a Cohabitation Agreement?

Not every couple needs a cohabitation agreement. If you're not planning a long-term relationship, making plans on your one-month anniversary might be overdoing things.

A cohabitation agreement takes the place of marriage, so might consider one if your relationship has other hallmarks of a marriage. For instance:

• If you have children together
• If you have shared property
• If you have joint accounts, like bank accounts or investments
• If you purchased a home together and have mortgage payments

The more your relationship resembles a marriage, the more likely it is to need a cohabitation agreement.

What Does a Cohabitation Agreement Do?

A cohabitation agreement is a legal document that creates legal guidelines for a cohabiting couple. If one partner dies or the couple separates, the cohabitation agreement divides their shared property and provides child support like marriage laws.

A cohabitation agreement can include:

• Estate planning: If you and your partner have been together long enough, you may want your property to go to your partner rather than other family members. Unmarried partners have no more rights to one another's property than any other individuals, so you will need a will that names your partner as your beneficiary.
• Shared property: In a marriage, property acquired before marriage remains separate property. For unmarried couples, everything you purchase is separate property unless purchased with joint funds. If both of you share major purchases like furniture or remodeling, your agreement determines who must reimburse whom for the purchase.
• Financial support: If you and your partner have children in common, you can avoid long, expensive arguments in family court with an agreement on paternity, child custody, and child support before your relationship ends. Without a written agreement, state law determines visitation and support.
• Financial responsibility: Cohabitating partners, like roommates, need to agree on household expenses like utilities, groceries, and home repairs. Don't let your relationship end because you argued over whose turn it was to pay the electric bill.
• Dispute resolution: Any contract should include a mediation or arbitration clause. This helps you resolve any problems before resorting to litigation.

Are Cohabitation Agreements Legal?

Like a prenuptial agreement, a cohabitation agreement is legal under certain conditions. Some circumstances make them unlawful. You should get legal advice before signing the document to ensure your agreement is legal.

Both parties must:

• Agree to the terms of the contract
• Sign the contract knowingly and voluntarily
• Have an opportunity to obtain independent legal advice before signing

There are also some things your agreement cannot include, discussed in more detail below.

Meretricious Relationships

A "meretricious" agreement is an exchange of sexual services for money or other consideration. It is essentially a contract for prostitution.

If the agreement includes any type of exchange of "companionship" in exchange for paying bills or rent, the contract is probably unenforceable.

Child Support

Like a prenuptial agreement, a cohabitation agreement cannot waive or limit child support. Parties can agree on certain child support guidelines, but the court will not approve any agreement to waive support if the relationship breaks up or to limit support to a dollar amount.

Illegal States

Two states, Mississippi and North Carolina, still have laws against cohabitation. These states do not have common-law marriage. Courts will not enforce an illegal contract, so these states will not enforce a cohabitation agreement.

A cohabitation agreement must meet the same legal requirements as any other contract. Both parties must agree to the terms of the agreement.

Get Legal Advice from a Family Law Attorney

A cohabitation agreement can bring you peace of mind and save you legal headaches if it is drafted properly. Before writing or signing an agreement, discuss your needs with a family law attorney in your area.