Is Your Cohabitation Agreement Valid?

Cohabitation agreements are sometimes referred to as nonmarital agreements or living together contracts. A cohabitation agreement is a legal contract between an unmarried couple who lives together.

These contracts outline what happens if the relationship ends. This includes the division of property and financial assets like bank accounts and real estate. Such contracts can also cover topics like child custody and child support. Cohabitation agreements aren't just for romantic partners. Roommates can also enter these agreements. They offer some legal protection, peace of mind, and clarity.

Maybe you've signed a similar agreement with your live-in partner. But is your cohabitation agreement valid? The following information will help you get up to speed.

Marvin v. Marvin and Cohabitation Agreements

The validity of such agreements was the subject of a well-publicized 1976 case in the California Supreme Court (Marvin v. Marvin). In that case, the court held that an unmarried couple's agreement to share income while living together in consideration of (or exchange for) companionship could be enforceable. But Michelle Marvin wasn't awarded "palimony" because the court found that Actor Lee Marvin hadn't agreed to share his income with her.

While the case didn't work out in Michelle Marvin's favor, it set an important precedent about cohabitation agreements. Cohabitation agreements must meet certain criteria to be valid by state courts. These criteria can vary. Generally, the agreement must be a written contract, not an implied agreement. Both parties must sign it, and they must sign voluntarily (without coercion).

It's also important that the agreement doesn't include any illegal provisions. For example, it can't limit child support obligations. These obligations follow state laws and protect the child's best interests.

'Meretricious' Relationships and Oral Agreements

When an agreement includes consideration of sexual services provided by one of the parties, a court is more likely to find the contract unenforceable. For example, one partner agrees to share their income for the other partner's love and companionship. A court may find that the contract implies "meretricious" sexual activity. The court may refuse to enforce the contract.

Proving an oral agreement or an implied contract between unmarried cohabitants is also tricky. Several courts have refused to recognize such an agreement due to insufficient proof.

Cohabitation Agreement Requirements

Most states now recognize cohabitation agreements. The legal tests for valid cohabitation agreements parallel the requirements of other contracts. They're just another type of contract. Only a few recent cases have held that contracts between unmarried cohabitants are unenforceable.

A cohabitation agreement is more flexible and less regulated than a marital agreement. Unmarried couples typically include the following key points in their contracts:

  • Distribution of property in case of death or breakup, including bank accounts, debts, and real estate
  • Financial support during the relationship or after (like spousal support)
  • Payment of debts from before and during the relationship
  • Division of the principal home upon the death of one partner or breakup
  • If the parties choose, they can own a shared home as joint tenants with rights of survivorship, allowing the other partner to own the shared home if the other dies (make sure to title the property accordingly)
  • Determination of child support, custody, or visitation rights for minor children, although the court can disagree with this and decide differently based on what's in the best interests of the children
  • Determination of healthcare insurance responsibility, and
  • Creation of advanced healthcare directives or health power of attorneys to allow both partners to make decisions about the other's healthcare in case of incapacity

Unmarried partners entering a cohabitation agreement should always consider what should happen if the couple splits. The agreement should also address child custody and support if you're in a long-term relationship and have or plan to have children. Again, keep in mind that any arrangements involving children must meet state laws and be in the best interests of the child.

Cohabitation Agreements vs. Prenuptial Agreements

Premarital and cohabitation agreements are apples and oranges. If you marry your partner when you had a cohabitation agreement, it will not be in effect after the marriage. The purpose of the prenuptial agreement (or "prenup") is to decide what happens after marriage. All states enforce at least some prenups, and almost all recognize cohabitation agreements.

Getting legal advice is crucial when creating a cohabitation agreement. Help from a legal professional is the only way to ensure your contract is valid.

Is Your Living Together Contract Valid? Talk to an Attorney

It's important to make sure that you and your partner have a very clear understanding of your rights and obligations to each other. Living together agreements can provide clarity and help you avoid tensions later. Attorneys can help you prepare these contracts.

An experienced lawyer can ensure the contract is fair and legally valid and provides the protections you're seeking. They can help with estate planning, which can be complex for unmarried couples. Lawyers can also help you with your legal rights and provide valuable legal advice for cohabiting couples.

Speak with an experienced family law attorney familiar with these contracts 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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