If you’re one of the millions of Americans who are living with a romantic partner and are not yet married, you might want to consider creating a cohabitation agreement.
While it’s not exactly a romantic notion to plan for the end of your relationship, ignoring the possibility that you might break up won’t make things any easier if it happens. Whether you plan on getting married one day or not, living with a romantic partner and not having a cohabitation agreement in place is risky for both of you.
Like a prenuptial agreement, a cohabitation agreement is designed to address the variety of personal, financial, and family issues you and your partner may face in the event of an emergency or a breakup. Cohabitation agreements can be as limited or as broad as you and your partner choose but typically cover vital aspects of your personal and financial lives.
Here’s what you, and your partner, need to know about cohabitation agreements and why you should create one as soon as possible.
What Is a Cohabitation Agreement?
A cohabitation agreement is a contract between people living together in the same household who are in a romantic relationship but not married. (A cohabitation agreement isn’t necessary if you’re living with roommates, though a roommate agreement can be useful.)
Like all contracts, a cohabitation agreement has to meet some basic legal requirements in order for a court to enforce its terms. Since these requirements aren’t explicitly clear in every state, you should talk to an attorney in your area if you’re considering making an agreement. While a large majority of states allow cohabitation agreements, there are some states in which their legality is less than clear.
Virginia, for example, has a law that makes “fornication,” or the act of having sexual intercourse outside of marriage, a crime. While it’s unclear if a Virginia prosecutor would ever charge someone with fornication, the law may make it less likely for a court to enforce an agreement that assumes a crime is being committed.
In states that do recognize or allow cohabitation agreements, legal requirements can differ depending on where you live and what your circumstances are. The basic requirements, however, are mostly the same regardless of your location. These include:
Unlike prenuptial agreements, which are usually governed by laws specific to them, courts view cohabitation agreements as a form of legal contract. In order to be legally enforceable, all contracts must contain “consideration,” or an exchange of value between the agreeing parties. In a car sale, for example, the seller agrees to provide the car, and the buyer agrees to provide money as payment. Both parties agree to give something of value (the car or the money) to the other as consideration.
Determining what the consideration is in a cohabitation agreement can be somewhat tricky. In general, the law prohibits contracts for sexual favors, so while it’s understood that a couple living together is most likely having sex, you can’t have a cohabitation agreement that exchanges living quarters, money, or something else of value for sex acts. You can, however, agree to share expenses in exchange for companionship or other forms of consideration that are legally allowed in your area.
Fair & Freely Entered
No one can legally force you to enter into a contract. For a court to enforce the terms of your cohabitation agreement, you must be able to show that you and your partner chose to enter into the agreement of your own free will, without being unduly influenced, tricked, forced, or otherwise made to agree to the terms unfairly.
To do this, both partners should have ample time to review and discuss the provisions of the agreement before signing anything. It’s recommended that each partner have their own attorney to advise them and guide them through the creation process, though it’s not necessarily required by law.
For a court to find your cohabitation agreement fair and enforceable, it must be certain that both you and your partner entered into it with full knowledge of what you were agreeing to. To satisfy this requirement, each partner must typically disclose to the other exactly what they’re getting into.
That means, for example, that you have to be upfront about all aspects of your finances. You will usually have to create and include detailed financial disclosures as a part of the agreement, or at least disclose to each other the full details of your financial situations before entering into the agreement. Revealing your debts, assets, obligations, incomes, credit scores, and other key pieces of your financial and personal lives is part of this process and is best done in writing.
Some states allow you to waive this kind of disclosure, but if you choose to do so, you will have to make it clear that you freely chose to waive any disclosure obligation by saying so in writing.
In Writing, Signed
While some courts will enforce an oral or non-written cohabitation agreement, it’s always better to have your agreement in writing with the terms outlined as specifically as possible. Verbal agreements and agreements with broad or poorly stated provisions are often difficult to enforce. Moreover, addressing specific issues in writing and in detail makes it easier for everyone to understand precisely what you and your partner intend.
Once the agreement is written, each partner needs to sign it and keep a signed copy for themselves. It’s also a good idea to have your signatures notarized. Only people licensed by your state, called public notaries, can notarize a document for you. Your bank may offer notary services to account holders, but courthouses, accountants, attorneys, and even shipping stores may have notary services available. While notarization won’t guarantee that a court will find your agreement legal, it will make it easier to prove that both of you signed and agreed to it if you ever have to go to court.
Cohabitation vs. Prenuptial Agreements
A prenuptial agreement, or prenup, is a contract entered into by a couple before marriage that governs what happens if and when the marriage dissolves. While prenups are similar in some ways to cohabitation agreements, there are significant differences.
In particular, most states have specific laws that apply to prenuptial agreements, while cohabitation agreements are governed by the general laws for contracts. If you want a prenuptial agreement, or want to use your cohabitation agreement terms as the basis for your prenup, you should talk to a family law attorney in your state about the best way to do this.
Cohabitation Agreements & Common Law Marriage
The terms “common law marriage” or “common law spouse” are often erroneously used to describe romantic couples living together outside of marriage. Some people believe that by living together with a romantic partner, they are automatically entering into a common law marriage. Others think they must live together for a specific length of time before a common law marriage exists. Others believe they can become a common law couple as soon as they move in together.
Becoming a legally married couple through a common law process is possible in limited circumstances; however, common law marriages are not what most people believe them to be. Put simply, common law marriage is a method of creating a legally recognized marriage that doesn’t involve receiving a marriage license or having your marriage solemnized by a judge, clergy member, or licensed third party. When you’re married by common law, you are a married couple like any other, with all the rights and obligations that come with that.
Currently, only a small number of states allow couples to get married through common law. Further, the requirements you must meet to be married by common law are much more stringent than simply living together or living together for a minimum amount of time. State requirements differ, but essentially, you and your partner must both agree to be married and must present yourselves to the public as a married couple.
So, unless you and your partner live in one of the states that allow marriage by common law, and you meet all of your state’s marriage requirements, you are not common law married. This is true regardless of how long you’ve lived together and whether you have a cohabitation or any other type of agreement.
Issues to Address in a Cohabitation Agreement
A cohabitation agreement can be as specific or as general as you like. Depending on your circumstances, your agreement might look significantly different from those used by other couples. As a general rule, however, all agreements should address some core topics and issues common to anyone living with a romantic partner.
For example, a young couple planning on getting married and having children might create a cohabitation agreement they plan on using as the basis for a prenuptial agreement. Another, older couple creating an agreement might have no plans to have children together and no plans to get married. While the younger couple’s agreement will include specific terms about child care, support, guardianship, and similar issues, the older couple’s will not. However, both will address issues involving personal property, debts, inheritances, and healthcare decisions in the event that one partner becomes incapacitated.
You and your partner will have to discuss what issues are important to you, how you wish to address them, and any limitations or conditions you wish to include. Including specific sections that address each of the major relevant topics is important even if you don’t want to give, transfer, or otherwise share anything. Waivers can be just as vital as other clauses. For example, if you and your partner want to live together but want to preserve your individual property so you can leave it to your adult children, you each can waive the right to receive any property from your partner as an inheritance. Stating this in writing, rather than leaving out an individual property section altogether, will make your intentions clear to anyone examining the agreement later on.
Having a cohabitation agreement that addresses all important topics will give both of you the broadest possible protections. Whether you agree to do or share something, or agree not to do or share something, you need to say so in your cohabitation agreement.
All couples have property of some kind. Whether it’s a house, a dog, or bills, you and your partner have shared interests in at least some of the things you own. If you break up, deciding how to divide that property without a cohabitation agreement can be a nightmare.
Dividing property after a divorce is one thing, but dividing property after a breakup is another. All states have laws that address how a married couple must divide their property after a divorce, but non-married couples have no such laws to fall back on. Instead, couples living outside of marriage must either come to an agreement on their own or fight out any property disputes in court.
A good cohabitation agreement addresses all of the property you have now, as well as property you might acquire in the future, and makes detailed provisions for how all of it gets divided. While your agreement should address the specific property issues relevant to your relationship, there are key issues most agreements include.
- Real Property. If either of you owns a house, condo, or any other kind of real estate, your cohabitation agreement should specifically address if, and how, your relationship will affect ownership of this real estate. You should also address any property you plan on acquiring as a couple. Joint ownership, inheritance upon death, and ownership after a breakup are all issues your agreement must cover. As real estate laws differ significantly from state to state, you’ll need to talk to an attorney to ensure your real property clauses are as comprehensive as they need to be.
- Vehicles. After a home, the most expensive piece of property most couples own is a personal vehicle. Like real estate, vehicles must be titled in the owner’s name, and transferring ownership requires the legal transfer of title. If you and your partner have one or more vehicles, your cohabitation agreement should address if, and how, ownership of those vehicles will change in the event of death or the end of the relationship.
- Personal Property. Both of you will acquire personal property, such as household goods or clothing, while in your relationship. Much of this type of property won’t need to be covered in detail, though more important possessions – such as family heirlooms, furniture, electronics, or valuable collectibles – should be. If needed, you can include a list of personal property items to be divided between the two of you, or incorporate a property inventory that you can amend as you acquire or dispose of property over the course of the relationship.
- Debts. If you or your partner have debts, or either of you acquires debts during the relationship, dividing responsibility for those debts through your agreement is essential. It’s common, for example, for both partners to have their own debts prior to entering the relationship, such as student loans. Acquiring joint debts in the course of the relationship, such as taking out a joint credit card, is also common. Your cohabitation agreement should address how different types of debt get divided after a breakup, as well as who’s responsible for making payments while you’re still together.
- Support. Spousal support, also known as marital support or alimony, is a big part of most divorces, and every state has laws that allow either spouse to pay or receive support once the marriage ends. Non-married couples don’t have that right automatically. Your cohabitation agreement should address support payments directly, either by stating that both of you agree there will be no such payments in the event of a breakup or by providing the details of any payments that will be made. If you wish to provide for payments, you’ll have to specify the terms, including who pays, how much, and for how long. When deciding on support payments, you’ll want to consider a variety of factors, such as how long the relationship lasted and whether one partner agreed to raise any children, leave the workforce, pay for or pursue an education, or make other contributions to the relationship in lieu of earning income.
- Inheritances. One of the benefits couples automatically receive upon marriage is the right to inherit property from one another upon the other’s death. This is a right that can’t be taken away from you without your consent, and one you have even if your marriage only lasts a day. But you don’t have a right to an automatic inheritance from your partner if you’re not married, regardless of how long you’ve been together. If you want to provide an inheritance for your partner upon your death, your cohabitation agreement needs to state this, as well as address how the inheritance will be passed along. You can’t use a cohabitation agreement as a substitute for a last will and testament, but you can use it to state how much you’ll leave your partner through your will. Other inheritance options, such as transfer-on-death accounts, can also be addressed in any inheritance clauses.
- Pets. While you may consider your pets part of your family, the law considers them property. As a result, your agreement should state who is responsible for caring for your pets, paying pet expenses, and, perhaps most importantly, who gets to keep the pets if and when the relationship comes to an end. You should include a pet clause if either of you brings pets into the relationship, as well as if you plan on acquiring them later. If you later decide to get a pet but don’t have any pet clauses in your agreement, you’ll want to modify it once you become pet owners.
Income, Savings, & Expenses
Apart from assets and debts, cohabitating with a partner often involves co-mingling income, sharing expenses, and some level of joint financial interests and responsibilities. While some couples have no intention of sharing money, others freely give and take funds from one another without any accounting. Whichever camp you fall into, you need to discuss your preferences with your partner and include them in your cohabitation agreement.
- Income and Banking. If both partners earn an income, your agreement should state how that income will be distributed or managed. For example, you might choose to divide your income by automatically transferring some funds to a joint checking account to pay for joint expenses and the rest to individual accounts for each of you. If only one of you has an income, you’ll have to decide how you want the non-earning partner to access these funds, especially if that partner is responsible for paying any joint expenses or providing for savings.
- Retirement and Savings. If you plan on staying together indefinitely, or if either of you plans on retiring in the coming years, it’s essential to discuss who will be responsible for saving for retirement and paying expenses after one or both of you stop working. It’s also important to agree on how to divide your retirement savings if you break up. Both partners should have some idea of when they want to retire and how much they’ll need when they do. If you plan on sharing your retirement funds or using them to pay for joint expenses, your cohabitation agreement should reflect that. Talking to a financial planning professional about your individual and shared goals is always a good idea here.
- Bills. Will you and your partner share a cell phone plan? Internet service? Cable TV fees? Discuss how you want to divide these types of living expenses and include them in your agreement.
- Household and Living Expenses. Your agreement can include any expenses and costs you feel are appropriate, such as babysitting fees, charitable donations, and clothing expenses.
Healthcare is another area in which there are significant legal differences between married couples and those living together outside of marriage. Marriage grants automatic rights to spouses as each other’s next of kin, but non-married couples don’t have these rights. As a result, a cohabitation agreement should address any key healthcare issues you share.
- Health Insurance. Health insurance is an important concern for many couples. While both of you are free to find your own health insurance, employer-provided insurance usually doesn’t extend to a non-married partner. (This isn’t always the case; some employers do offer this option, and some states and cities have domestic partner coverage requirements.) Your cohabitation agreement should address who is responsible for obtaining health insurance coverage and how much each partner must contribute toward it. This is especially important if one partner intends to stay home and not work or otherwise doesn’t have access to employer-provided coverage.
- Healthcare Directives. If you’re married and your spouse becomes incapacitated, you typically have the right to make healthcare decisions for them. But if you’re not married, you have no automatic right to make such decisions. That’s where healthcare directives come in. A healthcare directive (also known as an advance directive, healthcare proxy, or by similar terms), is a legal document you prepare in anticipation of losing your ability to either make or express your healthcare wishes. There are two basic kinds of directives: living wills and healthcare powers of attorney. A living will allows you to state in detail the kinds of care you wish to accept or refuse should you lose the capacity to state these decisions yourself. A healthcare power of attorney allows you to name a person who will make these decisions for you. Your cohabitation agreement usually cannot serve as a substitute for an advance directive, but it should refer to such directives and any decision-making provisions they allow each partner.
Children & Family
If you and your partner plan on having or adopting children together, or if either of you has children from a prior relationship, there are several issues your agreement must address.
That said, when it comes to questions about child custody and child support, courts always have the final word. If a court is ever asked to make a ruling on a question of child custody or support, it might agree with the terms you’ve included in your agreement, but it could just as well discard them and impose its own judgment.
Nevertheless, addressing any issues surrounding children and family members is something you’ll want to be sure to do, even if it only serves to make it clear to each of you what you expect of the other over the course of your relationship.
- Child Custody. Child custody is the legal right to live with a child (physical custody), make child-rearing decisions (legal custody), and generally be involved in the child’s life. Your agreement should include terms about who the children will live with, who they’ll spend holidays with, and how you and your partner will determine child-rearing questions in the event of a breakup.
- Child Support. Child support is money paid from one parent to the other to cover the costs of raising a child. In general, the custodial parent (the parent who has the child most of the time) receives child support from the non-custodial parent.
- Expenses and Care Decisions. Your agreement should also include terms about who will be responsible for child-related expenses or care decisions, both while you’re together and if the relationship ends. For example, if you want to create a college savings account for your child’s anticipated college expenses, you’ll want to include terms about how you intend to fund it.
- Children From Other Relationships. One of the more challenging issues you can face in a cohabitating situation is the care and support of children who are not yours. If, for example, your partner has a child from a previous relationship for whom you care and provide, a court won’t typically recognize your right to custody visitation even if you include a section for it in your cohabitation agreement. Courts are obligated by statute to protect the child’s best interests, and those statutes do not recognize custody or visitation rights for non-biological parents.
Sex & Lifestyle Clauses
While it’s generally assumed that cohabitating couples engage in sexual relations, you can’t use your agreement as a contract specifically for sexual relations. For example, if you create a cohabitation agreement that says you agree to live with your partner in exchange for regularly having sex with her, a court will refuse to enforce that agreement. Courts view these kinds of agreements, known as “meretricious,” as similar to prostitution, and as such refuse to enforce them.
Lifestyle clauses, on the other hand, can include sexual conduct. While courts are reluctant to enforce meretricious agreements, agreements with lifestyle clauses in them are often accepted. These clauses typically address infidelity and tend to include provisions that require the philandering partner to pay a financial penalty. However, the enforceability of these types of clauses is not always easy to gauge, so talking to a family law attorney about infidelity or similar lifestyle clauses is necessary if you want to ensure your agreement is enforceable.
Beyond infidelity, lifestyle clauses can also be used for issues not addressed in other parts of your agreement. For example, some people include lifestyle clauses that state where the couple will spend Christmas, when in-laws or relatives can visit, and even what happens if one partner gains too much weight.
Ending the Relationship
There are some specific issues couples routinely face when their relationship ends that should be addressed in your agreement. These include which partner is responsible for moving out, what kind of notice you must provide to each other, and how long you have to find a new place to live. Other issues, such as whether you’ll liquidate jointly owned property and whether one partner will buy out the other’s interest, should also be addressed.
No one can predict the future, and a key part of any good cohabitation agreement is allowing for change. Your agreement should state in clear language what you must do if either you or your spouse wants to make changes to the agreement terms.
There are many ways you can approach this, but it’s typical to require all modifications be made in writing and agreed to by both parties. Your agreement should also address what happens if you later move to, or acquire property in, a different state. State laws can differ significantly in a variety of areas, so it’s important to include a provision that, for instance, applies your current state’s laws to your agreement no matter where you end up.
Creating a cohabitation agreement doesn’t typically require a lot of time, effort, or money. Even if you and your partner hire attorneys to negotiate and draft the agreement for you, you can usually get this done in a few weeks.
While there are do-it-yourself guides and templates available, a cohabitation agreement must fit the needs of those who create it, so no two agreements are identical. Regardless of how you choose to create your agreement, you’ll need to make sure it fits both your budget and your personal needs.
The Cost of Creating an Agreement
There are two basic ways to create a cohabitation contract: do it yourself or hire someone to help you. The first option is by far the cheapest. If you choose a DIY cohabitation agreement, your costs will be minimal. You can use a free or low-cost template or create an agreement from scratch. Of course, there’s no guarantee that a DIY cohabitation agreement will be useful, much less legally enforceable, but it is the cheapest option.
The more expensive, and safer, option is to create a cohabitation agreement with the aid and guidance of an attorney. When you hire a lawyer to write your contract, you’re paying for two things: the document itself and the legal advice necessary to create an agreement that will cover everything you need in a legally enforceable manner. The cost of hiring an attorney can range from a few hundred dollars to thousands of dollars or more depending on how much you want the attorney to do. The kind of attorney you hire, the location you’re in, and other factors will all also affect your cost.
For example, let’s say you and your partner hire a family law attorney to draft a basic cohabitation agreement that will cover what will happen should you and your partner break up. You have no children and don’t plan on having any, don’t plan on buying real estate, and don’t have significant assets to distribute. A basic agreement such as this could cost less than $500.
On the other hand, if you want an agreement that includes provisions for marital support, child custody and child support, healthcare, estate planning, and inheritance, you’ll need a more complicated agreement, as well as additional documents and tools. In this situation, the cost could exceed several thousand dollars or more, especially if you include a comprehensive estate plan.
The Cost of Not Creating an Agreement
When considering whether or not a cohabitation agreement is worth it to you, consider what might happen if you don’t have one, or if you have one that isn’t well-written. The potential costs can be significant and, in some situations, catastrophic – and you don’t even need to break up to face some serious issues. Consider these potential scenarios:
- You Break Up Without an Agreement. The legal case that ushered in the widespread use of cohabitation agreements involved a relationship where no such agreement was in place. Marvin v. Marvin involved a breakup between actor Lee Marvin and his ex-girlfriend Michelle Triola (who after the breakup changed her name to Michelle Marvin). In it, Triola sued Marvin for some of Marvin’s property as she claimed the two had a contract that gave her rights to it. While the court rejected her argument, its ruling it stated that such contracts are possible and enforceable and do not need to be made in writing. In other words, a cohabitating couple can, merely by the words they speak, enter into a contract in which one or both partners are legally obligated to pay the other in the event of a breakup. In the worst-case scenario, a court could find you legally obligated to give your ex some of your property after a breakup even if it isn’t covered by the terms of a cohabitation agreement. What’s more, that finding could come only after you go to court and fight it out, a process that is usually costly.
- You Break Up With a Bad Agreement. Breaking up with a poorly written cohabitation agreement can be even worse than not having one in place at all. While the result – you or your partner being obligated to pay or provide support to the other after the breakup – is the same, it would only come after you go to court and incur the related expenses, only to find out the agreement you created to avoid this whole mess is worthless. A poorly written cohabitation agreement also leads to an expectation that you’ll be covered should the relationship end. You could come to rely on that expectation and think you’re protected, only to have a court tell you this expectation is baseless, and you’re now on the hook for something you didn’t believe was a possibility.
- You Stay Together, The Relationship Is Wonderful, But Then Something Goes Wrong. Perhaps the most compelling reason to create a cohabitation agreement is not that you fear the relationship will come to an end, but that you know your relationship is strong and you want to make sure you’re both protected. No matter how committed you and your partner are to each other, how strongly you feel about each other, and how healthy your relationship is, the law simply doesn’t give you the same rights as a married couple. Should, for example, your partner fall ill and need someone to make medical decisions for them, you, as a non-married partner, probably don’t have that right. Instead, your partner’s parents, siblings, or possibly even more distant relatives may have the legal right to make life-or-death choices for the person you’re closest to in the world. In these situations, the monetary costs associated with any legal fights that might arise could be the least of your worries, as the stress and emotional toll from having to go through such a situation can be devastating.
When you move in together, you and your partner share more than intimacy and a place to live; you share financial interests, healthcare interests, and possibly even children.
Your relationship may be strong, but the law doesn’t give you the same rights it gives married couples. If you want to make sure your relationship desires are legally protected and give yourselves peace of mind, you need a cohabitation agreement.
Like many legal documents, cohabitation agreements aren’t something most people think of until something goes wrong, and by then, it’s often too late. Taking steps to protect yourself today can save both you and your partner from significant problems down the road.
If you’re living with your partner but not married, do you have a cohabitation agreement? Why or why not? What would make you consider creating one?