Living Together as an Unmarried Couple: Cohabitation Property Rights

Today, the concerns of cohabiting partners center more on property rights than referrals to law enforcement. Unmarried couples who live together do not have the same property rights and financial protections as married couples.

Many couples live together before marriage. Some remain together and never marry. In years past, state criminal codes addressed crimes against public morals. Living together without marriage not only raised eyebrows, it was against the law. In some states, like North Carolina, laws prohibiting fornication or adultery remain on the books. They may be unconstitutional and are rarely enforced.

In general, each person will keep the property they had before the relationship. In a marriage, this is called "separate property." Anything earned, gifted, or purchased during the cohabitation will still likely remain the property of each individual. Proof of purchase and ownership is key. Without clear evidence otherwise, the person who purchased property or who holds title to property solely in their name will retain it after a breakup.

The exceptions are typically:

  • Property with a legal agreement that declares joint ownership (title), such as real property or a motor vehicle
  • Estate planning documents that give personal property or money to a partner
  • Any other assets where evidence demonstrates joint ownership which tends to be split 50/50 when the relationship ends

Unmarried vs. Married Couples

Unmarried couples that live together do not have the same rights as a married couple in most circumstances. States provide specific laws and procedures related to divorce that apply to married couples. These laws seek to provide an orderly way for divorcing couples to divide assets and debts and address issues of child custody and support.

The rights of cohabiting couples may be different in cases of common-law marriage. Only a few states permit this today. Generally, common-law marriage may be recognized when the couple was of legal age to marry but did not. They lived together for a set period of time while holding themselves out as a married couple. Proving a common-law marriage can be challenging.

In certain states, an unmarried couple can agree to register as domestic partners and gain rights and duties similar to married couples. Again, not all states provide these laws. And unmarried couples often resist committing to any formal legal arrangement. That may be why they are not married.

For unmarried couples who live together and want legal protection, it's best to consider drafting and signing a written agreement that spells out the following:

  • Detailed descriptions about who owns what property
  • A plan for the division of property upon separation (including who remains in the residence whether rented or owned)
  • Timelines and protocols for the above

The agreement should address real property you purchase together, such as land, a building, or a home. Other major purchases like a car or boat should also be included. The agreement should distinguish your own property from your partner's property. Some refer to such written agreements as a Cohabitation Agreement.

A Cohabitation Agreement may be unnecessary for unmarried cohabitants who have only lived together for a short time and have little property.

However, people accumulate property and often gain income over time. By writing out an agreement how to divide property beforehand, you could avoid expensive and time-consuming legal issues. Defending your property rights is easily avoided by entering an agreement both partners consent to while the relationship is sound.

Note that pets do fall under property ownership laws in most states. While both people in the relationship may love the pet like a member of the family, whoever can prove they purchased the animal will likely win a pet custody battle. Some ex-couples may also create a visitation or shared pet custody plan. If a couple intends to share a pet after a breakup, they may want to consider a detailed agreement for peace of mind and to avoid conflict. Not all courts will recognize the enforceability of these agreements.

Cohabitation Property Agreements 101

A cohabitation property agreement explains who owns what. It is unique to you and your partner and should include whatever meets the specific needs of your relationship. These are not the same as a prenuptial agreement that persons may enter into prior to a marriage.

No two agreements will be the same, but most contracts include the following:

  • Lists of legal documents regarding ownership (like a car title or real estate title)
  • List of specific assets (pets, vehicles, property, separate and shared bank accounts, etc.)
  • How income is shared (if applicable)
  • How bills, utilities, and expenses are shared (if applicable)
  • A list of any newly acquired assets and who owns them
  • A plan to manage bank accounts, credit cards, insurance policies, etc.
  • A plan to distribute specific assets and/or debts after a breakup
  • What process (such as mediation or litigation) will be used to resolve disputes over property rights

Cohabitation Property Agreement: Houses

For most people, their home represents their most valuable asset. Buying a house together involves a major financial commitment and responsibility. Including the purchase of your home in your cohabitation property agreement is particularly important.

Unmarried couples who create a plan for addressing their property rights can avoid unpleasant surprises down the road. Care should be taken to ensure that you discuss and resolve all legal issues that may arise. Make your agreement as complete as possible.

A cohabitation property agreement is a contract between two parties that live together. Consider asking yourself the following questions and addressing them in your contract.

How Is Ownership Listed on the Deed of the House?

Suppose you own the home as "joint tenants with right of survivorship" when you die. In that case, the surviving partner takes full ownership of the house automatically. The home does not become part of the probate estate of the deceased. There are some benefits for unmarried couples to buy a house in a joint tenancy. If they break up, the joint tenancy allows both partners to tap into the equity in the home when it sells. The legal documents can clearly show joint ownership, provide guidance for the sale of the house, and help ensure each person gets their fair share.

You could also own the home as "tenants in common." When one of you dies, that person's share of the house goes to whomever they name in a will or trust. This matter will be addressed in the probate court proceedings. If the deceased person does not have a will or trust, their portion of the house will go to blood relatives per the intestate statute of the particular state.

How Much of the House Does Each Partner Own?

In the agreement, you can specify a percentage split of the parties as to ownership. For example, one partner will own 60% and the other partner will own 40%. The agreement can define how that may change over time. For example, if there is a plan to get the parties to a 50/50 split, the details of the plan can be spelled out. Perhaps the partner who owns the lesser amount will acquire more by making improvements or a number of mortgage payments. In that case, the details of this plan should be specified in the agreement.

Are There Buyout Rights? How the House Will Be Appraised?

Partners may state that with any breakup, the home will be sold and the proceeds divided by a percentage formula (if not 50/50). In the agreement, you can indicate how the home will be appraised. You can specify you will use the original realtor or that you will get a formal appraisal by an independent appraiser.

Partners may provide that when either party provides notice to end the partnership, one partner or the other may buy the other partner out of their interest and keep the home. Specific protocols and timelines will be key here. For example, when parties have children, they may provide for the primary custodian to remain in the home with the children. They may provide a timetable for that partner to pay the other partner their share. This varies and should be specified to your own specific needs.

Will the Ex-Partner Leave Willingly? Is This an Eviction Issue?

Most state laws protect someone living with you for several months. They have a legal right to live there and can't simply be thrown out. This applies even if the person isn't on the lease or deed and has no formal contract.

Two people living together should consider creating a contract or process for one party to move out when either party makes such a request. Going through a formal eviction process can be difficult, so having a contract in place ahead of time can ease the process.

If a formal eviction is unavoidable, you may need to involve the local courts and file the correct paperwork. It is typically called a "Complaint for Eviction" or something similar.

Cohabitation Property Agreement: Support Payments for Unmarried Couples

You may have heard of "palimony" instead of "alimony." This term combines "pals" and "alimony." It refers to an unmarried ex-partner paying the other ex-partner the equivalent of spousal support after the breakup. However, "palimony" is not a legal term.

Unmarried couples do not have the right to financial support unless they agreed on it previously. A couple would need an agreement detailing terms and financial support for this to apply. Remember that even informal written or verbal contracts can be legally binding.

Example Case: Unmarried Couple Financial Support

The California Supreme Court ruled that former unmarried domestic partners can sue for financial support under limited circumstances. In the 1976 case of Marvin v Marvin, the Court held that an ex-partner could go forward on the theory of implied contract in an attempt to show there was a promise to share assets or income after separation.

In the case, Michelle Triola stated that she and actor Lee Marvin cohabitated for 6 years. She claimed that he had promised to support her if she gave up her career. When the relationship ended, she filed for half his earnings and assets from the 6-year period. Although the lower court originally rejected the case as an attempt to reinstate common law marriage long after its abolition, it proceeded on the basis of implied contract. Michelle Triola did not win her requested damages as the lower court determined she did not prove her entire claim. It awarded a smaller amount which was questioned further on appeal.

The case garnered substantial publicity. It also created a precedent in California for unmarried couples to seek financial support or settlement under the theory of implied contract.

Cohabitation Property Agreement: Income

Income can become a point of tension in relationships. A written cohabitation agreement is likely a good idea if one partner makes significantly more money and financially supports the other.

One partner making little to no income and relying heavily on their partner for support is often called "income inequality." In a typical example, a person with a high-paying career pays the household bills, and their partner will:

  • Be a stay-at-home parent
  • Care for the home
  • Start a side business
  • Handle other significant tasks

There is one significant income in these situations, even though the other partner contributes time and effort to the household.

You should carefully consider the following if there is income inequality:

  • Create a written cohabitation property agreement and explain the terms of ownership if only one person is purchasing the home (and will be on the title)
  • Detail out conditions and timelines which will lead to the couple becoming joint tenants with the right of survivorship or tenants in common
  • List how furniture and fixtures added to the home will be owned and divided upon the termination of the relationship
  • Decide who (if anyone) would remain in the home and care for any children upon termination of the relationship
  • Create a detailed plan to compensate the non-income producing partner within a specific amount of years upon termination of the relationship
  • Decide if any "support" payments will be made to the non-income producing partner (for parties with children, child support and child custody will be separately addressed in family court)

Cohabitation Property Agreement: Liability for Debts

Generally, unmarried partners who live together are not responsible for each other's debts. The exceptions are:

  • The couple has a joint account or loan
  • The couple has a joint credit card
  • One person is a cosigner or guarantor for the other
  • The couple are registered as domestic partners

Cohabitation Property Agreement: Registered Domestic Partnerships

In some states, the law provides for unmarried couples that live together to become recognized domestic partners. For example, in California, a couple can complete and file a form for a Certificate of Registered Domestic Partnership. These registered domestic partners have similar rights and obligations as married couples. Once registered, the partners enjoy shared property and debts much like a married couple. Each state law will be different.

Although domestic partnerships may be set up to provide unmarried couples benefits similar to married couples, they may not be recognized by the federal government that way. Therefore, for federal tax purposes, a couple may find it wise to seek legal advice before they complete the process.

Unmarried couples may still benefit from entering into a written Cohabitation Agreement prior to registration. There may be couples who begin their relationship with a cohabitation agreement. They later progress to become registered domestic partners. They may subsequently enter into marriage. Each couple's story is different.

Property Rights For Unmarried Couples: Surviving Partners

Generally speaking, a surviving cohabiting partner has no property rights to the deceased partner's individual property. The exceptions are:

  • One partner leaves property to the surviving spouse by will or trust.
  • The couple already established joint tenants with rights of survivorship (the surviving partner will automatically take over the deceased partner's half).
  • Some states recognize domestic partnerships and establish rights to inherit a portion of the deceased partner's property.

Most often, unmarried partners who wish to provide for each other after death consider creating or amending their will or trust to reflect this.

Getting Legal Help: Avoid Conflict and Protect Your Property Rights

Property agreements are essential and valuable tools for protecting the property rights of unmarried couples.

It's crucial to design the agreement according to a couple's specific situation, so it's a good idea to consult an experienced family law attorney to discuss your situation.

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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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