Is a Cohabitation Agreement Right for Me?

Use these links to jump to different sections:

• Legal Implications and Benefits of a Cohabitation Agreement
• Financial Considerations Covered by Cohabitation Agreements
• Child-Related Provisions in Cohabitation Agreements
• How to Proceed with a Cohabitation Agreement
• Find Legal Help

Living together without tying the knot offers freedom and flexibility, but it also comes with unique legal and financial challenges. Whether you’re navigating shared finances, property ownership, or parenting responsibilities, this written agreement helps safeguard your rights and define expectations. Unlike prenuptial agreements, which apply to marriages, cohabitation agreements establish legal protections for couples who live together but aren’t married.

In the absence of common law marriage recognition in most states, this document provides crucial protection and clarity for domestic partners. Marilea Lewis, a top-rated attorney representing families at Duffee + Eitzen in Dallas, Texas, explains that there’s a variety of statuses when it comes to relationships. “You can be married, you can be single, you can be divorced, you can be widowed. And there are cohabitation agreements, which are contractual in nature.”

Legal Implications and Benefits of a Cohabitation Agreement

Unlike married couples, cohabiting partners don’t automatically gain legal rights to shared property, financial support, or decision-making authority. Many states do not recognize common law marriage, leaving cohabiting couples without the legal safety nets that marriage provides. A cohabitation agreement is a legal document that can bridge the gap in legal protection for couples by establishing a legally enforceable and binding agreement that protects both partners. It provides a structured framework to address shared responsibilities and protect individual rights.

A cohabitation agreement can protect property ownership. It can define ownership and management rights of real estate, personal property, or other assets. This is especially important for jointly purchased assets that are acquired during the relationship. Should the couple decide to separate, the cohabitation agreement will outline the property division.

During the relationship, the couple will have an agreement in place for how living expenses are paid. The cohabitation agreement formalizes this agreement to outline which significant other pays the financial responsibilities like rent, mortgage payments, and other household expenses. In some situations, the couple may agree to financial support paid by one individual to the other. This is called palimony, which is similar to alimony paid when a married couple divorces.

Because the court often treats cohabitating unmarried partners as non-family members, the cohabitation agreement can protect for estate planning purposes. The terms can outline inheritance rights and the passing of ownership of certain assets that would otherwise go through probate. It ensures property and assets are distributed according to the couple’s wishes, not state intestacy laws. A cohabitation agreement complements wills, trusts, and powers of attorney to provide comprehensive protection.

Financial Considerations Covered by Cohabitation Agreements

The primary reason for signing a cohabitation agreement for many romantic partners is to have financial protection. By formalizing an agreement, they can clearly define how bills will be paid, whether one person is paying or dividing it between the partners. This agreement can be used for all the couple’s bills, such as a mortgage, vehicle payments, credit card debt, taxes, and insurance. It can also be used to agree on how daily bills are handled, such as utility bills, groceries, and home maintenance. Having an agreement in writing can reduce the risk of conflict or legal issues later.

Individuals come to the relationship with their own financial assets like bank accounts, investments, and retirement. These accounts can be addressed in the cohabitation agreement to ensure each party keeps the assets with which they came into the relationship. It can provide a framework for keeping individual bank accounts separate. It also ensures that assets acquired before or during the relationship remain with the rightful owner. The couple can stipulate that certain debts remain the responsibility of the individual who incurred them. In addition, they may agree that one party provides ongoing financial support to the other in the event of a breakup.

Child-Related Provisions in Cohabitation Agreements

A couple that has children together but who is not married faces a unique challenge. They share the responsibility of caring for and raising children. A cohabitation agreement can include child custody. Agreeing to these terms early can make the separation process of arranging child support and custody easier when the relationship ends. Common custody details included in a cohabitation agreement include parenting schedules, decision-making responsibilities, and the dispute resolution process. It will also outline financial contributions for the child’s expenses, including education, healthcare, and extracurricular activities. The couple can agree on daily responsibilities and how things like medical care are handled.

Having an agreement in place in advance protects the couple and the children. There is greater stability for the children as the couple separates because there is a clear framework for caregiving and financial support. It reduces uncertainty and stress for children during transitions or disputes. One thing to note. While couples have broad freedom to create an agreement with terms that work for them, they must abide by the applicable state law. In addition, the court will retain the final say on matters pertaining to the children’s best interest.

How to Proceed with a Cohabitation Agreement

Once a couple decides to create a cohabitation agreement, they should discuss their goals for having the agreement. Determining the primary driving factors can help guide the couple in creating the terms of the agreement. Examples could include protecting property ownership and finances or outlining parenting responsibilities. With goals in mind, it is time to consult a family law attorney. The lawyer will discuss the couple’s goals and reasons for creating the agreement. The attorney will guide the couple through the drafting process to ensure legal compliance.

Typically, each individual in the relationship should seek their own legal representation. There is the potential for a conflict of interest to have both individuals represented by a single attorney. The lawyer’s job is to protect the best interest of their client. This can conflict, as the couple’s best interests could be conflicting with each other. Having independent attorneys ensures each couple is fairly represented. Independent legal advice helps verify that the agreement is balanced and legally binding. Having separate attorneys can prevent claims of coercion or unfairness if the agreement is ever contested. Once drafted, the couple will sign their agreement to ensure legal enforceability. Relationships evolve, so periodic updates to the agreement may be necessary to reflect changes in circumstances.

Lewis speaks about her time as a judge. Her experience allowed her to see firsthand the potentially expensive and devastating consequences of couples attempting to draft their own cohabitation agreement. “In community property, there’s some language that can really cause you to have real issues. When I was on the bench, I saw couples who had made major mistakes in many areas. There’s not necessarily magic language, but there’s some real ‘gotcha terms.’”

Find Legal Help

A cohabitation agreement can provide clarity, security, and fairness for unmarried couples navigating shared finances, property rights, and parenting responsibilities while in a long-term relationship. It provides a framework for managing your relationship while protecting both partners’ futures, especially in states that don’t recognize common-law marriage or domestic partnerships. However, creating an agreement that truly reflects your intentions and safeguards your interests requires expert legal advice. Speaking with a knowledgeable family law attorney is the best way to ensure your agreement is legally sound and protects your interests.

Search the Super Lawyers directory today to find a trusted family law attorney who can help you draft an agreement that meets your needs.