What Is a Cohabitation Agreement – Why You Need One Before Living Together
If you’re one of the millions of Americans who are living with a romantic partner and are not yet married, you might want to consider creating a cohabitation agreement.
While it’s not exactly a romantic notion to plan for the end of your relationship, ignoring the possibility that you might break up won’t make things any easier if it happens. Whether you plan on getting married one day or not, living with a romantic partner and not having a cohabitation agreement in place is risky for both of you.
Like a prenuptial agreement, a cohabitation agreement is designed to address the variety of personal, financial, and family issues you and your partner may face in the event of an emergency or a breakup. Cohabitation agreements can be as limited or as broad as you and your partner choose but typically cover vital aspects of your personal and financial lives.
Here’s what you, and your partner, need to know about cohabitation agreements and why you should create one as soon as possible.
A cohabitation agreement is a contract between people living together in the same household who are in a romantic relationship but not married. (A cohabitation agreement isn’t necessary if you’re living with roommates, though a roommate agreement can be useful.)
Like all contracts, a cohabitation agreement has to meet some basic legal requirements in order for a court to enforce its terms. Since these requirements aren’t explicitly clear in every state, you should talk to an attorney in your area if you’re considering making an agreement. While a large majority of states allow cohabitation agreements, there are some states in which their legality is less than clear.
Virginia, for example, has a law that makes “fornication,” or the act of having sexual intercourse outside of marriage, a crime. While it’s unclear if a Virginia prosecutor would ever charge someone with fornication, the law may make it less likely for a court to enforce an agreement that assumes a crime is being committed.
In states that do recognize or allow cohabitation agreements, legal requirements can differ depending on where you live and what your circumstances are. The basic requirements, however, are mostly the same regardless of your location. These include:
Unlike prenuptial agreements, which are usually governed by laws specific to them, courts view cohabitation agreements as a form of legal contract. In order to be legally enforceable, all contracts must contain “consideration,” or an exchange of value between the agreeing parties. In a car sale, for example, the seller agrees to provide the car, and the buyer agrees to provide money as payment. Both parties agree to give something of value (the car or the money) to the other as consideration.
Determining what the consideration is in a cohabitation agreement can be somewhat tricky. In general, the law prohibits contracts for sexual favors, so while it’s understood that a couple living together is most likely having sex, you can’t have a cohabitation agreement that exchanges living quarters, money, or something else of value for sex acts. You can, however, agree to share expenses in exchange for companionship or other forms of consideration that are legally allowed in your area.
No one can legally force you to enter into a contract. For a court to enforce the terms of your cohabitation agreement, you must be able to show that you and your partner chose to enter into the agreement of your own free will, without being unduly influenced, tricked, forced, or otherwise made to agree to the terms unfairly.
To do this, both partners should have ample time to review and discuss the provisions of the agreement before signing anything. It’s recommended that each partner have their own attorney to advise them and guide them through the creation process, though it’s not necessarily required by law.
For a court to find your cohabitation agreement fair and enforceable, it must be certain that both you and your partner entered into it with full knowledge of what you were agreeing to. To satisfy this requirement, each partner must typically disclose to the other exactly what they’re getting into.
That means, for example, that you have to be upfront about all aspects of your finances. You will usually have to create and include detailed financial disclosures as a part of the agreement, or at least disclose to each other the full details of your financial situations before entering into the agreement. Revealing your debts, assets, obligations, incomes, credit scores, and other key pieces of your financial and personal lives is part of this process and is best done in writing.
Some states allow you to waive this kind of disclosure, but if you choose to do so, you will have to make it clear that you freely chose to waive any disclosure obligation by saying so in writing.
While some courts will enforce an oral or non-written cohabitation agreement, it’s always better to have your agreement in writing with the terms outlined as specifically as possible. Verbal agreements and agreements with broad or poorly stated provisions are often difficult to enforce. Moreover, addressing specific issues in writing and in detail makes it easier for everyone to understand precisely what you and your partner intend.
Once the agreement is written, each partner needs to sign it and keep a signed copy for themselves. It’s also a good idea to have your signatures notarized. Only people licensed by your state, called public notaries, can notarize a document for you. Your bank may offer notary services to account holders, but courthouses, accountants, attorneys, and even shipping stores may have notary services available. While notarization won’t guarantee that a court will find your agreement legal, it will make it easier to prove that both of you signed and agreed to it if you ever have to go to court.
A prenuptial agreement, or prenup, is a contract entered into by a couple before marriage that governs what happens if and when the marriage dissolves. While prenups are similar in some ways to cohabitation agreements, there are significant differences.
In particular, most states have specific laws that apply to prenuptial agreements, while cohabitation agreements are governed by the general laws for contracts. If you want a prenuptial agreement, or want to use your cohabitation agreement terms as the basis for your prenup, you should talk to a family law attorney in your state about the best way to do this.
The terms “common law marriage” or “common law spouse” are often erroneously used to describe romantic couples living together outside of marriage. Some people believe that by living together with a romantic partner, they are automatically entering into a common law marriage. Others think they must live together for a specific length of time before a common law marriage exists. Others believe they can become a common law couple as soon as they move in together.
Becoming a legally married couple through a common law process is possible in limited circumstances; however, common law marriages are not what most people believe them to be. Put simply, common law marriage is a method of creating a legally recognized marriage that doesn’t involve receiving a marriage license or having your marriage solemnized by a judge, clergy member, or licensed third party. When you’re married by common law, you are a married couple like any other, with all the rights and obligations that come with that.
Currently, only a small number of states allow couples to get married through common law. Further, the requirements you must meet to be married by common law are much more stringent than simply living together or living together for a minimum amount of time. State requirements differ, but essentially, you and your partner must both agree to be married and must present yourselves to the public as a married couple.
So, unless you and your partner live in one of the states that allow marriage by common law, and you meet all of your state’s marriage requirements, you are not common law married. This is true regardless of how long you’ve lived together and whether you have a cohabitation or any other type of agreement.
A cohabitation agreement can be as specific or as general as you like. Depending on your circumstances, your agreement might look significantly different from those used by other couples. As a general rule, however, all agreements should address some core topics and issues common to anyone living with a romantic partner.
For example, a young couple planning on getting married and having children might create a cohabitation agreement they plan on using as the basis for a prenuptial agreement. Another, older couple creating an agreement might have no plans to have children together and no plans to get married. While the younger couple’s agreement will include specific terms about child care, support, guardianship, and similar issues, the older couple’s will not. However, both will address issues involving personal property, debts, inheritances, and healthcare decisions in the event that one partner becomes incapacitated.
You and your partner will have to discuss what issues are important to you, how you wish to address them, and any limitations or conditions you wish to include. Including specific sections that address each of the major relevant topics is important even if you don’t want to give, transfer, or otherwise share anything. Waivers can be just as vital as other clauses. For example, if you and your partner want to live together but want to preserve your individual property so you can leave it to your adult children, you each can waive the right to receive any property from your partner as an inheritance. Stating this in writing, rather than leaving out an individual property section altogether, will make your intentions clear to anyone examining the agreement later on.
Having a cohabitation agreement that addresses all important topics will give both of you the broadest possible protections. Whether you agree to do or share something, or agree not to do or share something, you need to say so in your cohabitation agreement.
All couples have property of some kind. Whether it’s a house, a dog, or bills, you and your partner have shared interests in at least some of the things you own. If you break up, deciding how to divide that property without a cohabitation agreement can be a nightmare.
Dividing property after a divorce is one thing, but dividing property after a breakup is another. All states have laws that address how a married couple must divide their property after a divorce, but non-married couples have no such laws to fall back on. Instead, couples living outside of marriage must either come to an agreement on their own or fight out any property disputes in court.
A good cohabitation agreement addresses all of the property you have now, as well as property you might acquire in the future, and makes detailed provisions for how all of it gets divided. While your agreement should address the specific property issues relevant to your relationship, there are key issues most agreements include.
Apart from assets and debts, cohabitating with a partner often involves co-mingling income, sharing expenses, and some level of joint financial interests and responsibilities. While some couples have no intention of sharing money, others freely give and take funds from one another without any accounting. Whichever camp you fall into, you need to discuss your preferences with your partner and include them in your cohabitation agreement.
Healthcare is another area in which there are significant legal differences between married couples and those living together outside of marriage. Marriage grants automatic rights to spouses as each other’s next of kin, but non-married couples don’t have these rights. As a result, a cohabitation agreement should address any key healthcare issues you share.
If you and your partner plan on having or adopting children together, or if either of you has children from a prior relationship, there are several issues your agreement must address.
That said, when it comes to questions about child custody and child support, courts always have the final word. If a court is ever asked to make a ruling on a question of child custody or support, it might agree with the terms you’ve included in your agreement, but it could just as well discard them and impose its own judgment.
Nevertheless, addressing any issues surrounding children and family members is something you’ll want to be sure to do, even if it only serves to make it clear to each of you what you expect of the other over the course of your relationship.
While it’s generally assumed that cohabitating couples engage in sexual relations, you can’t use your agreement as a contract specifically for sexual relations. For example, if you create a cohabitation agreement that says you agree to live with your partner in exchange for regularly having sex with her, a court will refuse to enforce that agreement. Courts view these kinds of agreements, known as “meretricious,” as similar to prostitution, and as such refuse to enforce them.
Lifestyle clauses, on the other hand, can include sexual conduct. While courts are reluctant to enforce meretricious agreements, agreements with lifestyle clauses in them are often accepted. These clauses typically address infidelity and tend to include provisions that require the philandering partner to pay a financial penalty. However, the enforceability of these types of clauses is not always easy to gauge, so talking to a family law attorney about infidelity or similar lifestyle clauses is necessary if you want to ensure your agreement is enforceable.
Beyond infidelity, lifestyle clauses can also be used for issues not addressed in other parts of your agreement. For example, some people include lifestyle clauses that state where the couple will spend Christmas, when in-laws or relatives can visit, and even what happens if one partner gains too much weight.
There are some specific issues couples routinely face when their relationship ends that should be addressed in your agreement. These include which partner is responsible for moving out, what kind of notice you must provide to each other, and how long you have to find a new place to live. Other issues, such as whether you’ll liquidate jointly owned property and whether one partner will buy out the other’s interest, should also be addressed.
No one can predict the future, and a key part of any good cohabitation agreement is allowing for change. Your agreement should state in clear language what you must do if either you or your spouse wants to make changes to the agreement terms.
There are many ways you can approach this, but it’s typical to require all modifications be made in writing and agreed to by both parties. Your agreement should also address what happens if you later move to, or acquire property in, a different state. State laws can differ significantly in a variety of areas, so it’s important to include a provision that, for instance, applies your current state’s laws to your agreement no matter where you end up.
Creating a cohabitation agreement doesn’t typically require a lot of time, effort, or money. Even if you and your partner hire attorneys to negotiate and draft the agreement for you, you can usually get this done in a few weeks.
While there are do-it-yourself guides and templates available, a cohabitation agreement must fit the needs of those who create it, so no two agreements are identical. Regardless of how you choose to create your agreement, you’ll need to make sure it fits both your budget and your personal needs.
There are two basic ways to create a cohabitation contract: do it yourself or hire someone to help you. The first option is by far the cheapest. If you choose a DIY cohabitation agreement, your costs will be minimal. You can use a free or low-cost template or create an agreement from scratch. Of course, there’s no guarantee that a DIY cohabitation agreement will be useful, much less legally enforceable, but it is the cheapest option.
The more expensive, and safer, option is to create a cohabitation agreement with the aid and guidance of an attorney. When you hire a lawyer to write your contract, you’re paying for two things: the document itself and the legal advice necessary to create an agreement that will cover everything you need in a legally enforceable manner. The cost of hiring an attorney can range from a few hundred dollars to thousands of dollars or more depending on how much you want the attorney to do. The kind of attorney you hire, the location you’re in, and other factors will all also affect your cost.
For example, let’s say you and your partner hire a family law attorney to draft a basic cohabitation agreement that will cover what will happen should you and your partner break up. You have no children and don’t plan on having any, don’t plan on buying real estate, and don’t have significant assets to distribute. A basic agreement such as this could cost less than $500.
On the other hand, if you want an agreement that includes provisions for marital support, child custody and child support, healthcare, estate planning, and inheritance, you’ll need a more complicated agreement, as well as additional documents and tools. In this situation, the cost could exceed several thousand dollars or more, especially if you include a comprehensive estate plan.
The Cost of Not Creating an Agreement
When considering whether or not a cohabitation agreement is worth it to you, consider what might happen if you don’t have one, or if you have one that isn’t well-written. The potential costs can be significant and, in some situations, catastrophic — and you don’t even need to break up to face some serious issues. Consider these potential scenarios:
When you move in together, you and your partner share more than intimacy and a place to live; you share financial interests, healthcare interests, and possibly even children.
Your relationship may be strong, but the law doesn’t give you the same rights it gives married couples. If you want to make sure your relationship desires are legally protected and give yourselves peace of mind, you need a cohabitation agreement.
Like many legal documents, cohabitation agreements aren’t something most people think of until something goes wrong, and by then, it’s often too late. Taking steps to protect yourself today can save both you and your partner from significant problems down the road.
If you’re living with your partner but not married, do you have a cohabitation agreement? Why or why not? What would make you consider creating one?
Mark Theoharis is a former attorney who writes about the intersection of law and daily life, covering everything from crime to credit cards. He mostly writes for legal publishers, marketing agencies, and law firms, but gets the occasional chance to publish fiction. When he is not writing, Mark restores vintage and antique typewriters, though his editors have made it quite clear that typed submissions are strictly prohibited.
What Is a Cohabitation Agreement – Why You Need One Before Living Together
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