What Is A Cohabitation Agreement?

Jan 20, 2024 | cohabitation, Communication

If you are wondering what on Earth a cohabitation agreement is, you’ve come to the right place. This article explores the purpose, content, and legal requirements of cohabitation agreements. We’ll also delve into real cases, such as California’s influential Marvin vs. Marvin case, Florida’s recognition of oral cohabitation agreements, and an interesting case in Massachusetts, where a court enforced a cohabitation agreement and underscored the importance of these contracts.  

 

What is a cohabitation agreement? 

A cohabitation agreement is a contract between two people who live together or plan to live together soon. Many states recognize this as a valid and enforceable agreement. A cohabitation agreement is similar to a prenup in that it sorts out financial matters between a couple. One of the major differences between a cohabitation agreement and a prenup is that a prenup requires a couple to actually get married for it to be considered valid. With a cohabitation agreement, you can have a valid contract without ever getting married.

Depending on your state laws, cohabitation agreements may cover topics such as property ownership, financial contributions to the household (who pays for what), whether a joint bank account will be utilized, “palimony” (the financial support from one partner to the other after the relationship ends), household chores, pet responsibilities, inheritance if one partner was to pass away, and more. 

 

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 cohabitating, but are not married nor are they domestic partners.” People that may be a good fit for a cohabitation agreement include: 

  • Older couples who don’t plan on getting married ever, 
  • Couples who are fresh out of a recent divorce and don’t want to get married for several years, or 
  • Any couple in those states that don’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. 

 

What can you put into a cohabitation agreement? 

So, let’s get into the details–what goes into a cohabitation agreement? Does anything go? We breakdown a full list of some of the different clauses you may be able to include in your agreement. Just keep in mind that every state is different, and some states may have restrictions on the contents of cohabitation agreements, which is why you should always speak with an attorney in your state to get a full understanding of what can and cannot go into your cohabitation agreement.

1. Property ownership 

One of the main clauses people want to include in a cohabitation agreement is who owns what. This may be real estate titles, personal belongings, bank accounts, furniture, vehicles, and even pets.

2. Household financial contributions 

A.k.a., who pays for what. You can include a clause that says who will pay the bills, who will pay for maintenance on the house, who will cover unexpected costs to the home, etc.

3. Palimony 

“Palimony” is the term some states use for financial support made from one partner to the other after the relationship ends. It’s a play on the term “alimony” which is the financial support paid from one ex-spouse to another when a divorce occurs.

4. Household chores 

You can utilize a cohabitation agreement to outline the division of labor in a home. For example, agreeing that one partner will be responsible for all homemaking tasks, such as cleaning, laundry, etc. in exchange for one partner paying all of the bills and agreeing to palimony. 

5. Decision-making 

Should certain people be responsible for certain decisions in the household? For example, should one person be in charge of all financial decisions or matters related to the home?

6. Terms for a break up 

Another clause to add would be the terms for what happens when/if a termination of the relationship occurs (a.k.a., a break up). Should one person vacate the premises in 30 days? Should some type of mediation occur? Should any type of notice be given?

7. Death 

On the not-so-bright side, you can also include terms about death. What should happen if one partner dies. Should there be any inheritance rights given to the surviving partner? 

 

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, signed, and some states require witnesses and notarization. But what is required of a cohabitation agreement? Well, this is going to depend on your state. For example, there are plenty of states, such as Florida, that will enforce an oral cohabitation agreement, whereas other states may require it to be in writing to be enforceable. Virtually all states agree, though, that exchange of sexual activity for property or money is not acceptable and that cannot be the basis (i.e., “consideration”) of the cohabitation agreement. To understand what makes a cohabitation agreement enforceable, we recommend speaking with a Family Law Attorney in your state. 

Case Law: Real cases about cohabitation and palimony 

Let’s dive into the various different cases that touch on the topic of cohabitating couples and the outcomes of such arrangements. 

California: The term “Palimony” is coined 

“Palimony” is a term created by the California Supreme Court, known as Marvin vs. Marvin, back in the 1970s. In this case, an unmarried heterosexual couple lived together, and the “wife” managed the household while the “husband” worked (remember, they weren’t actually married). Despite the absence of a cohabitation agreement, the Court still ruled that the concept of “palimony” was applicable to this case, explaining that the wife deserved financial support after her years of homemaking. Before this landmark case, many states did not acknowledge or enforce the rights of cohabiting partners. Post-Marvin vs. Marvin, there was a noticeable shift, with more courts recognizing and upholding cohabitation agreements between unmarried couples.

 

Florida: Oral cohabitation agreement enforceable 

In 2017, a Florida court in Armao v. McKenney dealt with the question of whether or not an oral cohabitation agreement was enforceable. (This means a cohabitation agreement between a couple that was not written down, but instead verbally expressed). In this case, Turnbull, one of the partners in the relationship in question, testified that he and his partner agreed to combine all their money, belongings, and inheritances to pay for their current and future needs. Over their forty-year relationship, they mixed their funds, with Turnbull giving his pay, social security, inheritances, and property sale money to his partner (Armao). Armao managed their money, paying for the mortgage and living costs using their combined funds. They also took out joint loans and made identical wills and trusts, leaving everything to each other. Turnbull’s testimony, along with these actions, gave this Florida court enough evidence to recognize their verbal cohabitation agreement.

The court explained that, in Florida, “. . . unmarried cohabitants may agree to enter into an enforceable contract that establishes rights and responsibilities towards each other ‘as long as it is clear there is valid, lawful consideration separate and apart from any express or implied agreement regarding sexual relations.’” Armao v. McKenney, 218 So. 3d 481, 484 (Fla. Dist. Ct. App. 2017). It further explained that, yes, oral agreements between unmarried couples are enforceable in Florida and that most states agree with this notion. There are only a few states that require cohabitation agreements to be in writing. 

 

Massachusetts: Cohabitation agreement is enforceable
In the case, Wilcox v. Trautz, the couple was together for about 25 years without ever marrying. Both partners contributed financially to the household. Eventually, at some point Partner A became concerned about their relationship (there was some infidelity going on), so he had a cohabitation agreement drafted, laying out certain financial terms with Partner B. The terms included requiring Partner B to leave the premises within 30 days if requested by Partner A. They signed the agreement. Eventually, Partner B continued with the infidelity and got into another relationship. Partner A then asked her to leave (according to the cohabitation agreement), she did not, and instead moved into another bedroom in the house, which, in part, sparked the proceeding to enforce the cohabitation agreement. 

So, was this cohabitation agreement upheld by the Massachusetts court? Yes, the court enforced this agreement. It explained, “With the prevalence of nonmarital relationships today, a considerable number of persons live together without benefit of the rules of law that govern property, financial, and other matters in a marital relationship. Thus, we do well to recognize the benefits to be gained by encouraging unmarried cohabitants to enter into written agreements respecting these matters, as the consequences for each partner may be considerable on termination of the relationship or, in particular, in the event of the death of one of the partners.” Wilcox v. Trautz, 427 Mass. 326, 330 (1998). 

 

Final Thoughts

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.

You are writing your life story. Get on the same page with a prenup. For love that lasts a lifetime, preparation is key. Safeguard your shared tomorrows, starting today.
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