Living together? Thinking about your future together? It’s natural to wonder about your rights and responsibilities as an unmarried couple. That’s where a cohabitation agreement may come in. It’s like a prenup for couples who aren’t married and don’t plan on getting married any time soon. Oh, and it’s not just for the rich and famous.
In this guide, we’ll break down everything you need to know about cohabitation agreements in a way that’s easy to understand. We’ll cover what they are, what they typically include, and how to make sure they’re legally binding. Plus, we’ll dive into some real-life examples from California, Florida, and Massachusetts to show you how these agreements have made a difference for real couples.
What is a cohabitation agreement?
A cohabitation agreement is a contract between two people who live together or plan to live together soon. Here are more details on what it is and why you might get one:
- It is for unmarried couples: A cohabitation agreement lays out financial ground rules if you share a home, similar to a prenup, but it doesn’t require marriage to be effective. A prenup requires you to get married to be effective.
- Why you might want a cohabitation agreement:
- To protect assets you bring into the relationship.
- Decide who pays for what bills.
- Avoid fights over pets, chores, etc., if you break up.
- It’s NOT just for the rich: Cohabitation agreements can help anyone who’s serious about cohabiting, has assets, or simply wants to ensure a relationship split goes smoothly.
- The key difference from a prenup: You don’t need to get married for this agreement to be valid, as is required for a prenuptial agreement. You can have a cohabitation agreement with a boyfriend/girlfriend.
It’s important to note that not every state may enforce cohabitation agreements the same way. Find out your state’s rules before you create one.
What does a cohabitation agreement do?
A cohabitation agreement is a contract between an unmarried couple that is living together that lays out certain rules for their relationship if it ends. This agreement can be beneficial for platonic roommates or people in a romantic relationship to provide peace of mind and lay out the expectations of the relationship and the living arrangements. These contracts resemble prenuptial agreements in the sense that they parse out who owns what, who is responsible for what, and other similar terms. The bottom line is that cohabitation agreements are a great way to set expectations with the person you plan to live with.
Who should get a cohabitation agreement?
We spoke with seasoned Beverly Hills Family Law Attorney Raymond Hekmat, who explained, “Cohabitation agreements are useful for couples who want to organize and protect their finances while cohabiting but are not married, nor are they domestic partners.” People who may be a good fit for a cohabitation agreement include:
- Living together + no plan to marry: If you and your beau never plan on getting married or are unsure, getting a cohabitation agreement can be a nice first step in outlining certain matters in the event of a split.
- Older age: Older couples who don’t ever plan on getting married.
- Recent divorce: Couples who are fresh out of a recent divorce and don’t want to get married for several years.
- Platonic roommates: If you plan to live with someone long-term, even if it isn’t a romantic relationship, getting a cohabitation agreement may be pertinent to lay out certain rules, such as who is responsible for what expenses and maintenance and other house related terms.
- Non-common law marriage states: Any couple in those states that doesn’t recognize common law marriage. For example, if you are in a state that does not recognize common law marriage, you may not be protected by your state laws unless you officially get married, so getting a cohabitation agreement may be a good idea.
Getting a cohabitation agreement is a personal decision to make with your partner. There’s no right or wrong answer for who should get one!
What can you put into a cohabitation agreement?
So, let’s get into the details–what goes into a cohabitation agreement? Does anything go? Below is a breakdown of some of the different clauses you may be able to include in your agreement:
- Who owns what: House, cars, furniture, even pets. This prevents arguments and even lawsuits if you split up. For instance, your grandmother’s $10,000 antique lamp– who owns that? What about the Lambo sitting in the driveway (okay, a Nissan)?
- Paying the bills: Who covers rent, groceries, etc. You can lay out terms for whether the bills will be split equally or proportional to each person’s income (or something else, if it makes sense for you).
- “Palimony” (like alimony, but for unmarried couples): Will one partner support the other financially after a breakup?
- Decision-making: Will one person handle finances, or do you decide together? For instance, who will decide on hiring and financials behind renovations to the home?
- If you break up: How much notice before moving out? Will you try to resolve it peacefully (mediation)?
Remember, laws do vary state to state so what you may include in a cohab agreement may be different in California vs. Massachusetts.
What are the legal requirements for a cohabitation agreement?
So, what goes into a cohabitation agreement to make it enforceable? For example, in a prenup, there are certain legal requirements, such as it needs to be in writing and signed, and some states require witnesses and notarization. But what is required of a cohabitation agreement? Here’s what to know:
- Put it in writing and sign it: Most states will require a cohabitation agreement to be in writing and signed by both parties to be enforceable. Think of it like a basic contract, with basic contract principles applying.
- Notarization: It’s not necessarily required, but it can be a good way to add an extra layer of protection to your agreement.
- State differences: Remember, the laws will vary by state. For example, some states might uphold an oral agreement, others absolutely won’t. This is why you need a lawyer to help you navigate through the murky waters of cohab agreements.
- Don’t include red flag clauses: Promises based on sex in exchange for money/property are NOT valid in any state. Try to avoid any clauses that are based on each party’s behavior, such as infidelity, sex, etc.
- Hire a lawyer: Don’t try to DIY a cohabitation agreement. A family law attorney licensed in your state will likely know the exact requirements to make it legally sound.
Given that cohabitation agreements are a relatively rare and newer concept, there isn’t much law out there regarding the requirements, so taking the conservative route and putting more guardrails around the agreement (such as notarization and hiring lawyers) may be the best route.
Case Law: Real cases about cohabitation agreements
Let’s dive into some different cases that touch on cohabiting couples and the outcomes of such arrangements in various states.
California: The case that coined the term “palimony”
“Palimony” is a term created by the California Supreme Court back in the 1970s. It is a play on the words “pal” and “alimony” and is the sister of “alimony,” but instead of paying financial support to your ex-spouse, “palimony” is financial support to your ex-boyfriend/girlfriend.
- The 1970s case that coined palimony: In Marvin v. Marvin, an unmarried couple lived together for years. She stayed home; he made the money. When they split, she had nothing.
- What the court decided: Even without a written agreement, the woman in this case deserved financial support for her contributions to the relationship. This concept became known as “palimony” (financial support from one ex-boyfriend to his ex-girlfriend).
- It’s a big impact: Before this case, unmarried couples in California had very few legal protections if they broke up. Marvin v. Marvin helped pave the way for unmarried couples’ protection and recognition of cohabitation agreements.
The bottom line? In California, even without a cohabitation agreement or marriage, you can be required to financially support your ex in certain situations (this is known as “palimony).
Are oral agreements enforceable in Florida?
Potentially, yes. In 2017, a Florida court in Armao v. McKenney dealt with the question of whether or not an oral cohabitation agreement was enforceable. The court ultimately held that cohabitation agreements in Florida don’t always have to be written down to be legally binding. In Armao v. McKenney, a man claimed he and his partner verbally agreed to pool their finances together. After 40 years and no written contract, the court backed him up and upheld the cohabitation agreement. The court reasoned that the couple’s actions supported the verbal agreement. For example, they had joint bank accounts, shared expenses, and wills leaving everything to each other. However, in Florida, oral promises can’t be solely based on sex in exchange for money/property. That voids a cohabitation agreement, just like in every other state.
Massachusetts cohabitation agreement upheld
This is a case from Massachusetts that discussed whether or not written cohabitation agreements are enforceable. (Spoiler alert: They are.) In Wilcox v. Trautz, a couple lived together for 25 years. They had a written cohabitation agreement outlining what would happen if they split. The agreement was eventually enforced when they broke up. Even though they weren’t married, the court upheld their agreement when one partner wanted to end the relationship. The court explained that, “it’s smart for unmarried couples to have these agreements written down. It protects both partners if things change.” This case likely led to more people in Massachusetts realizing the importance of cohabitation agreements, even if they aren’t planning to get married.
Frequently Asked Questions (FAQs) about cohabitation agreements
Let’s get into some more questions regarding this hot topic of cohabitation agreements.
A: A cohabitation agreement lays out the property rights of two people who are living together but not married and do not plan to marry soon. For example, stating that each person’s income, property, and debt are separate property, and neither party is entitled to the other’s money.
Q: What is the difference between marriage and cohabitation?
A: Marriage is a legal contract between a couple, created by getting a marriage license, holding a marriage ceremony, and signing a certificate (among other state requirements for marriage). On the other hand, cohabitation is when a couple is living together but is not married.
A: It depends on what state you are in. Many states enforce cohabitation agreements, and as long as they are executed properly, they will be considered binding.
A: You can bring up the cohab agreement by approaching the conversation thoughtfully, focusing on mutual benefit, and framing it as a tool for clarity and fairness (not distrust).
Final thoughts on cohabitation agreements
In conclusion, cohabitation agreements play an important role in organizing and protecting the financial interests of couples who choose to live together without marriage or domestic partnership. These agreements, while they can vary depending on what state you are in, generally provide a framework for addressing property ownership, financial responsibilities, and even considerations for the unfortunate event of a breakup or death. Seeking legal advice ensures that these agreements meet the necessary requirements for enforceability.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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