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? Think of it as a “living together” contract.
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. You can have a cohabitation agreement with a boyfriend/girlfriend.
Important Caveat: Not every state enforces cohabitation agreements the same way. Find out your state’s rules before you create one.
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 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 plan on getting married ever,
- Recent divorce: Couples who are fresh out of a recent divorce and don’t want to get married for several years or
- Non-common law marriage states: 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? Below is a breakdown of some of the different clauses you may be able to include in your agreement below:
- 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?
- Chores: Avoid resentment! Agree who cooks, cleans, does repairs, etc.
- 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)?
Important notes:
- Laws change state-to-state: Some things on this list might NOT be legal where you live.
- Don’t DIY this: A family law attorney or general practice attorney will be able to help you draft a cohabitation agreement that’s both fair and enforceable.
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:
- The basics: Some states 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.
- State differences: This is where it gets tricky! Some states MIGHT uphold an oral agreement, others absolutely won’t. This is why you NEED a lawyer.
- Red flag: Promises based on sex in exchange for money/property are NOT valid in any state.
- The smart move: Don’t try to DIY a cohabitation agreement. A family law attorney licensed in your state will know the exact requirements to make it legally sound.
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.
- The 1970s case that changed things: In Marvin vs. Marvin, an unmarried couple lived together for years. She stayed home; he made money. When they split, she had nothing.
- What the court decided: Even without a written agreement, the woman deserved financial support for her contributions to the relationship. This concept became known as “palimony”.
- Big impact: Before this case, unmarried couples had very few legal protections if they broke up. Marvin vs. Marvin helped pave the way for cohabitation agreements to be recognized.
Takeaway: Even without a cohabitation agreement or getting married, you can be required to financially support your ex in certain situations in some states.
Are oral agreements enforceable in FL?
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. Here’s the rundown:
- The key takeaway: Cohabitation agreements in Florida don’t always have to be written down to be legally binding.
- The 2017 case that proves it: 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.
- Why this matters: Their actions supported the verbal agreement – joint bank accounts, shared expenses, wills leaving everything to each other, etc.
- Important rule: 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 protects unmarried couples who plan ahead
This is a case from Massachusetts that discussed whether or not written cohabitation agreements are enforceable. (Spoiler alert: They are).
- The case that set the standard: 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.
- Why it matters: Even though they weren’t married, the court upheld their agreement when one partner wanted to end the relationship.
- What the court said: “It’s smart for unmarried couples to have these agreements written down. It protects both partners if things change.”
- Real-life example: This case likely led to more people in Massachusetts realizing the importance of cohabitation agreements, even if they aren’t planning to get married.
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: [email protected]
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