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Cohabitation Agreements

Although most people don't realize it, marriage is a legal contract between two people. It defines the rights and obligations that each party owes each other. It shouldn't be surprising then, to learn that unmarried couples can create contracts between themselves that also define the rights and obligations of each partner. These contracts go by various names but are often referred to as cohabitation agreements, non-marital contracts, or living together contracts.

These contracts function similarly to prenuptial agreements, and set forth how money, property and debt among other things will be handled during and even after the relationship. It may seem extremely 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 that you may have. You would make quite the impression showing up to a first date with a pen and paper in hand. Rather, living together agreements are more appropriate for long-term relationships where a significant amount of money, property and debt are expected to accumulate.

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 just don't believe in the institution of marriage, for whatever reason, should strongly consider such an agreement. Even if you're morally or philosophically opposed to marriage, it's still smart to define the relationship's rights, obligations, and how property is to be distributed in the event of a separation or death.

Legality of Cohabitation Agreements

Contracts that function similar to marriage between unmarried couples have not always been on sound legal ground. The uncertainty behind non-marital agreements came to an end in 1976, however, 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 (such as the rights to property acquired during the relationship).
  • Unmarried couples may create "implied" non-marital agreements, without ever writing it down or expressly speaking about it. Rather, a court can evaluate the couple's actions to determine if such an agreement has been implied in their relationship.
  • If no implied agreement is found, a judge can presume that the parties intended to "deal fairly with each other," and grant one party rights and obligations consistent with equity and fairness.

Contents of a Cohabitation Agreement

Non-marital contracts don't need to be overly complex or contain legal-sounding language. To the contrary, it's a better idea to make the agreement in plain language, and include as much or as little detail as the couple feels is necessary. Here are some items to consider:

  • Property accumulated during the relationship: it's important to define how property acquired during the relationship should be treated. For example, if one person buys something during the relationship, do both parties own 50% of it? Does whoever bought it own it? What if the item is purchased using personal savings?
  • Property acquired by gift or inheritance: generally, people like to keep items received as gifts or by inheritance as separate property. If you and your partner want to do this, you need to 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, you need to write it down so there's no confusion.
  • Expenses: make sure you cover how expenses will be paid. 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 it proportional to income, or just pool your resources into one account and pay jointly.
  • Separation or death: although you may not want to consider it, it's important to define what happens when the relationship ends. It's important not to leave the status of property and money in limbo if a couple splits up.
  • Dispute resolution: in the case that a dispute arises, couples may want to define how it should be resolved. A typical example would include using mediation or arbitration before taking the matter to court.

Call a Lawyer Before You Sign Any Cohabitation Agreements

With the increasing diversity of relationship structures among couples, having a living together contract, can help to clarify important issues and avoid problems down the road. Even if you and your partner have an agreement in mind, you may want to speak with a family law attorney to make sure the agreement is sound and enforceable.

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