Can a Domestic Partnership have a Prenup?

Jan 12, 2023 | cohabitation, partnerships

The number of unmarried couples living together in the United States is rising fast. About 7% of the adult population lives together, unmarried, which equals about 17 million people. Not all of these people are in domestic partnerships because only a handful of states even recognize domestic partnerships. The trend toward more unmarried, cohabiting couples is possibly due to multiple factors: financial reasons, commitment issues, being against marriage as an institution, societal acceptance of unmarried partners, and more. Whatever the reason is, it’s on the rise, as it’s nearly tripled in the past few decades.

At the end of the day, if you aren’t planning on getting married, you can’t get a prenup. Prenups are effective upon marriage, not upon a domestic partnership. Keep reading to learn more about domestic partnerships and the alternative to prenups.

 

What is a domestic partnership?

A domestic partnership is a legal status between two individuals (same sex or opposite sex) who live together and share a domestic life together. Domestic partnerships are only recognized by a few states, as not every state recognizes this status. A domestic partnership is NOT a marriage, nor is it a civil union. Depending on the state, domestic partnerships may be awarded similar rights as marriages, but in most states, a domestic partnership has fewer rights than a marriage. 

Some of the rights that may come along with a domestic partnership include receiving health insurance benefits from your partner, life insurance benefits, state tax deductions, workers’ compensation benefits, medical and financial decisions on behalf of one another, jail and hospital visitation rights, and more. Remember, every state varies in what benefits it may offer to domestic partnerships. The states that still allow for domestic partnerships are California, the District of Columbia, Maine, Nevada, Oregon, Washington, and Wisconsin

 

History of domestic partnerships

Domestic partnerships came about a few decades ago, in the 80s, before same-sex marriage was legalized in any state (even though domestic partnerships are not just for same-sex partners). Domestic partnerships essentially allowed same-sex couples to receive some of the rights that married couples had, such as receiving health benefits from their partner.

In 2015, Obergefull v. Hodges, the U.S. Supreme Court case, legalized same-sex marriage across the U.S., which allowed those in domestic partnerships the ability to get married and receive the full rights that come along with a marriage. With this ruling, many states removed the option for the domestic partnership since marriage was now on the table. However, domestic partnerships still exist in some states today.

 

Can a domestic partnership have a prenup?

Let’s cut to the chase: no, domestic partnerships cannot have a prenup, unfortunately. A prenup is only effective upon marriage, not upon a domestic partnership. 

 

Alternative to prenups for domestic partnerships

Although domestic partnerships may not execute a prenup, they may utilize something known as a cohabitation agreement, sometimes called a “living together agreement” or “domestic partnership agreement.” This type of agreement may be beneficial for anyone who is in a relationship and living together but doesn’t plan on getting married, regardless of if you are a same-sex or opposite-sex couple.

 

Cohabitation agreements 

Cohabitation agreements are a contract between two unmarried people, same-sex or opposite-sex. A cohabitation agreement is one alternative to a prenup that allows people living together, such as in a domestic partnership, to discuss certain property rights while living together and if the relationship should end, either through separation or death. Cohabitation agreements may include, but are not limited to, the following topics: 

  • The property rights of each person as it pertains to the household they are living in, such as monetary contributions, sweat equity, and upkeep, 
  • Ownership of any other types of property (what property is separate and what is joint),
  • The allocation of expenses for the property, 
  • The rights of property upon separation (a division of assets and financial support of either party),
  • The assignment of debts, 
  • And more.

Cohabitation agreements are not recognized in some states. Among the states that do allow cohabitation agreements, they vary in requirements. For example, some states may allow a verbal contract while others may not. Other states may or may not enforce the financial support of an ex-partner, sometimes referred to as palimony (compared to alimony for ex-married couples, which is enforceable in all states). 

If one of the partners in a cohabitation agreement is to die, they may not have the same rights as married couples do in this situation. This is why having a will is important in the case of unmarried couples (and married couples, too!). 

 

Cohabitation agreement vs. prenup

Well, for starters, cohabitation agreements are between two people that are NOT about to get married, and prenups are between two people that are about to get married. Prenups only go into effect once they actually get married (if they never end up getting married = no prenup). Both are contracts. 

Another major difference between the two types of contracts is that cohabitation agreements may not be enforceable in some states, whereas valid prenups are enforceable in all states.

You can get both agreements if you want to. You may be able to get a cohabitation agreement which then gets replaced by the prenuptial agreement. The cohabitation agreement covers the time before you get married, and then the prenup will cover the time during and after the marriage.

 

Palimony 

Palimony, a play on the words “pal” and “alimony,” is the financial support from one ex-partner to the other. Palimony may sometimes be included in a cohabitation agreement, depending on the state. Palimony is determined on a state-by-state basis, as not all states will enforce palimony in a cohabitation agreement. This term, palimony, was coined after a famous California Supreme Court case known as Marvin vs. Marvin, in which a court declared that “palimony” was appropriate between an unmarried, opposite-sex couple that lived together (the wife took care of the home while the husband worked). And even though there wasn’t a written contract in place at all, the court still said the wife was entitled to financial support. Prior to this case, most states did not enforce or recognize the relationship between cohabiting partners. After this case, it became much more common for courts to enforce agreements between unmarried, cohabiting partners. 

 

The Bottom Line

Domestic partnerships cannot get a prenup. Prenups are only effective upon marriage, not upon a domestic partnership. There is a significant difference between domestic partnerships and marital relationships. Many states don’t even recognize domestic partnerships anymore, especially after the Obergefell ruling. However, if you’re in a domestic partnership and looking for a prenup alternative, you can check to see if cohabitation agreements are enforceable in your state. Cohabitation agreements are quite similar to prenups, with a few key differences. 

HelloPrenup can help you with all of your prenuptial agreement needs. To learn more about how it works, click here.

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All content provided on this blog is for informational purposes only. HelloPrenup, Inc. (“HelloPrenup”) makes no representations as to the accuracy or completeness of any information on this site. HelloPrenup will not be liable for any errors or omissions in this information nor for the availability of this information. These terms and conditions of use are subject to change at any time and without notice. HelloPrenup provides a platform for contract related self-help. The information provided by HelloPrenup along with the content on our website related to legal matters (“Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither HelloPrenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.

Nicole SheeheyNicole Sheehey is HelloPrenup’s Head of Content. She is an Illinois-licensed attorney. You can read more about us here. Questions? Reach out to Nicole directly at [email protected]

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