In 2019, the U.S. Census Bureau conducted a study that found that the number of unmarried couples living together had tripled over a two-decade period. Today, they make up 7 percent of the total adult population, a number that jumped from 6 million to 17 million over twenty years. The percentage skews even higher when looking specifically at younger adults.
Putting the reasons aside, the data tells us that more couples are living together but opting not to walk down the aisle. However, unmarried individuals aren’t protected by the same legal rights as married couples, should disputes arise or relationships dissolve. Here, putting together a cohabitation agreement to set forth some mutual agreements could be a great idea.
What is a cohabitation agreement?
A cohabitation agreement is a contract written and signed by individuals in a relationship who want to cohabitate and remain unmarried. The agreement creates a mutual understanding of obligations the partners have to one another in case the relationship dissolves or one of the partners passes away. Agreements could have to do with financial, medical, funerary, and other types of obligations.
To make a cohabitation agreement official, it should be drafted by an attorney and notarized. Verbal agreements can be legally binding in some states, the conversations can be much tougher to prove in court if a legal battle ensues.
When to draw up a cohabitation agreement
The ideal time to draw up your cohabitation agreement with your partner is before you move in with them, or soon after. However, it’s never too late. You can still draw up a cohabitation agreement at any time, even if you’ve been living together for years. It’s a great idea to make a habit of reviewing and revising your agreement regularly, especially when either or both of you experience big life events, such as buying a new asset, adopting a pet, or birthing a child.
What should be included in a cohabitation agreement?
As you might imagine, the provisions to determine what should happen after a cohabitation ends can cover a lot of ground. What happens if the relationship ends? If one of the partners passes away? You remain in the relationship but decide not to live together anymore? There are many decisions to make.
Here are some examples of what to address in a cohabitation agreement:
Who is named on the deed or rental lease?
Who is responsible for making mortgage payments or paying the rent?
If the partners do split up, what should happen to the property?
If one partner decides to move out, how much time will they be given?
Who is responsible for paying bills, utilities, and other expenses?
How personal property should be divided, including those purchased together and separately.
Responsibility for debts incurred prior to cohabitation and together during cohabitation.
Whether the wealthier partner is responsible for providing any financial support to the other partner in the case of a dissolution of the relationship.
Whether an agreement is made to address disputes via mediation before escalating them to court.
Determination of custody and visitation rights of children and/or pets.
Addressing child support that may not be enforced by court.
Cohabitation agreement vs prenuptial agreement
There are a few different types of agreements that can be made between couples that can help provide certain protections and clarity should anything happen. You may be wondering how a cohabitation agreement differs from a prenuptial agreement.
While these two legal contracts can be similar in nature, the key difference between a cohabitation agreement vs. prenuptial agreement is marriage. Cohabitation agreements are made between partners who want to live together but remain unmarried. They can include a provision about what should happen if the couple were to decide to get married. It could even state that the couple should draw up a prenuptial agreement at that time.
In contrast, a prenuptial agreement is made between partners before they get married. It addresses what should happen if they were to get a divorce. Some couples agree that each respective partner should keep what they owned prior to the marriage, while others may create an agreement around spousal support. One party may want to preserve their separate property so that it can be passed on to their children from a prior relationship (rather than it going to the spouse.)
While no partnership begins with the intention of an ending, the concept of taking preventative protective measures is becoming more normalized and commonplace. Many couples are deciding to strike up cohabitation and prenuptial agreements regardless of their income status.
How to set up a cohabitation agreement
Before you set up your cohabitation agreement, it’s recommended that you check your state laws. In general, states will uphold cohabitation agreements that are written. They are legally binding as long as one partner didn’t force the other partner to sign the contract. Further, make sure that the contract doesn’t contain anything illegal. If your agreement abides by these conditions, then most state courts should consider it legal and binding.
In terms of content, there is no set guide or specific manager in which the agreement should be written. It should lay out each partner’s rights and provide balanced protections for both parties. When creating your agreements, remember that the overarching goal is to ensure you’re both protected should the relationship end.
Some couples may choose to work with an attorney and have their document notarized should that make them feel more comfortable.
FAQs about cohabitation agreements
Now that we’ve covered the basics of when cohabitation agreements are used and how they work, here are some answers to common questions on the topic.
Do cohabiting couples have the same rights as married people?
In general, no.
Common law marriage is a legal concept that describes a couple who are considered married even though they did not obtain a marriage license. This recognition may come from the number of years that a couple have lived together, or by other habits that make them appear married for all intents and purposes.
However, there are very few states that recognize common law marriage. Some might even argue that it is a myth. When it comes to legal disputes, cohabiting couples do not have the same claims as married individuals or individuals in registered partnerships.
What happens to our cohabitation agreement if we decide to marry?
Cohabitation agreements apply to unmarried couples who live together. If a couple decides to marry, they could opt to sign a prenuptial agreement instead. If a married couple were to divorce, state laws determine what should happen with regards to property, spousal support, and child support, and any other areas that are not addressed by the prenuptial agreement (or in the absence of a prenuptial agreement.)
Why a cohabitation agreement is essential for unmarried couples
Creating a cohabitation agreement with your partner is a highly personal decision. Couples who decide to strike up an agreement have the opportunity to address how property, responsibilities, and obligations should be divided should anything happen. It is much easier to strike up agreements while you are on good terms with your partner.
Should anything happen, having a cohabitation agreement in place can help significantly reduce stress and help prevent disputes. The latter can become costly if they are escalated to the legal system. Resolving possible issues and disputes in advance is a reason why both cohabitation and prenuptial agreements are on the rise.
Do cohabitation agreements hold up in court?
Addressed earlier, it is best practice to check your state laws to determine the requirements for drawing up a legally binding cohabitation agreement. Most states can and will recognize a written agreement as long as it does not contain anything illegal, and both parties were mutually willing to sign it.
You can also choose to consult a legal professional to ensure that your rights are protected and that the agreement will hold up in court.
Is a cohabitation agreement a suitable Will?
A cohabitation agreement is a great way to protect your interests should you decide to move in with your partner, but choose not to get married. It can help address what should happen to your property, who will be financially responsible for what, and what should happen regarding pets and children, if the partnership ends. No one wants to go into a relationship or living arrangement with the attitude that it will end badly, but nonetheless, many couples are choosing to protect themselves these days. If anything, it’s so much easier to reach mutual agreements while you’re in a loving place, rather than having to battle it out if things were to go south. Just like most types of insurance, the goal is to have the peace of mind of protecting yourself while hoping not to have to use it. To learn more about cohabitation agreements vs Wills, check out our full guide here.
If you decide to strike up a cohabitation agreement with your partner, don’t forget to also be thinking about your estate plan. While your agreement may address certain relevant items such as the division of property, it is not a standalone tool. You’ll also want to put your Will and/or Trust in place to lay out a plan for how your assets and property should be distributed should anything unexpected happen.
At Trust & Will, we’re here to help keep things simple. You can create a fully customizable, state-specific estate plan from the comfort of your own home in just 20 minutes. Take our free quiz to see where you should get started, or compare our different estate planning and settlement options today!
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