There are about 7.7 million unmarried couples living together in the United States, according to 2010 US Census data. This is a 41% increase between 2000 and 2010, which is more than four times the growth of the overall household population. In an attempt to set out the legal rights each member of the couple will have during and following the relationship, cohabitation agreements have become popular.
What Is a Cohabitation Agreement?
A cohabitation agreement for unmarried partners, is a legal contract that sets out the legal cohabitation laws, rights and obligations each individual will have, especially should the relationship end. Generally speaking, a cohabitation agreement can cover almost anything except child custody matters. This is because practically all states will make legal decisions about a child based on the child’s best interests, not a legal contract.
Why Have a Cohabitation Agreement?
Each couple will have their own reasons for a cohabitation agreement, although there will be two primary motivations.
The first motivation involves the couple wanting to establish legal cohabitation rights normally created by marriage without having to get married. Until recently, this would have been especially popular among same-sex couples. However, the recent Supreme Court decision in Obergefell v. Hodges has changed that by legalizing same-sex marriage.
The second motivation will be to create an enforceable living together agreement concerning how property and legal obligations will be handled should the relationship end, whether by breakup or death. The underlying reasons for this motivation can also be intangible, such as creating peace of mind or effectively communicating needs and expectations of each person in the relationship.
So what kind of legally enforceable promises might an unmarried couple put into contract? They can include anything from who gets the family pet if the couple splits to who’s legally responsible for jointly acquired debts during the relationship, such as a mortgage. There’s also the possibility of outlining any financial support obligations that could arise.
Any couple that stays together for many years, especially those who accumulate large amounts of property, debt, expenses and/or wealth, can benefit from a cohabitation agreement.
Things to Know if Getting a Cohabitation Agreement
Even though a cohabitation agreement concerns issues that usually come up in the family law context, they are governed by contract law, not family law. When creating a cohabitation agreement, there are several things to keep in mind.
- Put it in writing
Oral contracts are sometimes enforced by the courts, but that’s never a sure thing. Even if it’s enforceable, it can be difficult to confirm the exact terms of the oral agreement. After all, the main reason for getting a cohabitation agreement is to eliminate uncertainties, so always get it in writing.
- Each person should have a lawyer involved in the signing of the cohabitation agreement
In order to strengthen the enforceability of the cohabitation agreement, each party should have his or her own attorney. This allows each person to obtain independent guidance on what specific provisions to include and whether or not they should agree to terms suggested by the other person.
One party not having a lawyer won’t automatically invalidate the cohabitation agreement, but it will make it much easier for the person who didn’t have a lawyer to argue they didn’t understand what they were signing or agreeing to.
- The couple should be completely honest about any assets and liabilities
One of the easiest ways to throw out a cohabitation agreement is for one side to hide the true amount of their wealth and/or debts. If one side doesn’t fully disclose assets or debts, the other side can effectively argue that the cohabitation agreement is fraudulent and unenforceable.
- Make sure the cohabitation agreement is fair
If the terms of a cohabitation agreement are too lopsided or unfair, a court may decide the cohabitation agreement is unconscionable and invalidate it.
Cohabitation agreements are not for every couple, and individuals should think carefully about why they need a cohabitation agreement and what provisions they should include. If properly prepared and implemented, they can be very useful and help prevent a nasty court battle. However, before entering into a cohabitation agreement, obtaining the advice of a trained attorney is strongly recommended. This is not just for benefit of the individuals, but to increase the chances of the cohabitation agreement surviving a legal challenge.