Do’s and Don’ts for Cohabitation

The term cohabitation is frequently used in a real estate or rental property context. In legal terms, cohabitation refers to a relationship arrangement in which two people live together in the same residence.

Generally speaking, these people are an unmarried couple; however, this is not the sole definition of what might constitute cohabitation. An example of this would be situations in which a couple has registered under the civil union or domestic partnership laws of their state of residence.

A civil union is similar to a marriage in that it is a legal status which provides many of the same legal rights and protections. However, such rights and protections are only available at the state level, not federally. An example of such federal provisions would be tax breaks and social security benefits. These are offered to married couples, but not those in a civil union.

A domestic partnership is another type of relationship between two people who are committed to each other, but are not married. In states which recognize this type of marriage alternative, the couple can register in order to receive some government benefits, similar to the benefits that are offered to married couples. Before same sex marriage was legalized in 2015, domestic partnerships were most frequently offered to same sex couples. Because of the legalization, domestic partnerships are now considered to be available for all types of couples.

Generally, the simple act of cohabitating alone does not provide each partner with protection in terms of their property and assets. This is because state family laws, as well as property laws, most commonly treat cohabitating partners as individuals for legal purposes. Cohabiting couples are not bound by marriage nor divorce laws.

What Is a Cohabitation Agreement?

Some dos and don’ts for cohabitation will be further discussed below. However, the biggest “do” would be to create a sound cohabitation agreement. This is a contract between two cohabitants, and may be thought of as similar to a prenuptial agreement.

A cohabitation agreement outlines all of the rights and responsibilities for both parties, as well as provides detailed information regarding:

• Finances;
• Issues with property, such as real property;
• Housing arrangements;
• Business matters;
• Personal affairs; and
• The acquisition and distribution of assets.

As with any legal contract, a cohabitation agreement is meant to be tailored to the specific needs of each individual party. What this means is that the potential for legal disputes is greatly reduced. This is a big reason why many family law attorneys encourage cohabitating couples to draft a cohabitation agreement.

Generally speaking, the most effective agreement serves to fill in the gaps created by the laws of the state of residence. An example of this would be how many state laws do not address the rights of the children of unmarried couples, or how property is to be distributed when one of the cohabitants dies. A cohabitation agreement in one of such states could contain provisions related to such information so that the cohabitants’ interests are protected.

Most states recognize cohabitation agreements while treating them as if they were ordinary contracts. What this means is that the agreement is considered to be legally binding, and imposes a legal duty on each cohabitant to adhere to all terms contained within the agreement. If the cohabitation agreement is violated in any substantial way, there may be legal consequences such as a damages award for the injured party.

What Are Some Tips For Cohabitation?

Some other recommendations for cohabitation in addition to creating a sound cohabitation agreement include the following:

• Keep finances separate;
• Clearly indicate which property belongs to which partner in the event of a separation;
• Hold title to major purchases, such as a vehicle, in the name of the partner who is actually making regular payments for the titled purchase;
• Remember to include yourself on the title to any major property if you are contributing to the payments for said property;
• Remember that you can indicate “loans” or “gifts” on checks which are written to your cohabitation partner, which will assist in contesting any argument that you were supporting your partner;
• Maintain records of financial contributions to and from each partner, in order to avoid creating any financial dependencies; and
• Understand that an unmarried parent frequently has the same legal obligations as a married or divorced parent. Meaning, they may be required to pay child support if they have children together, and later separate or end the relationship.

Some recommendations in terms of what you should do in a cohabitation relationship include the following:

• Do not take on joint debt, or cosign your partner’s debt, unless you truly intend to continually help repay those debts, as you may be held liable for debt that is not truly yours;
• Do not present yourselves as or claim to be a married couple, as you could become subject to common law marriage principles if the cohabitation arrangement comes to an end;
• Another reason to refrain from presenting yourself as a married couple is that you could be held liable for fraud if indicate being married on documents, with the intent to deceive; and
• Avoid being placed in a financially dependent position whenever possible, due to the fact that when you no longer live together, you will have no legal claim to their assets in order to support yourself.

What Are Some Common Legal Disputes Associated With Cohabitation?

When a cohabitation relationship ends, issues may quickly arise which may need to be remedied by legal action. Some examples of the more common legal disputes that are distinct from other marriage alternatives may include:

• Rent Conflicts: These disputes are most commonly associated with the amount of rent or monthly property payment each partner is to pay. An example of this would be if one partner claims that the other partner was responsible for paying rent in full, but there is no documentation of such an agreement;
• Privacy: All cohabitating couples should be aware of each partner’s rights in terms of the common and private areas of the property where they are living. A dedicated provision contained with the cohabitation agreement would be the best way to determine and prove such rights should any issues arise involving privacy;
• Destruction And Appropriation of Property: Property which specifically belongs to one partner may be damaged or stolen. This would lead to legal disputes, such as accusations of theft; and/or
• Violation of Cohabitation Living Agreements: As previously mentioned, a cohabitation agreement is considered to be a type of legally binding contract. As such, legal disputes may occur if either party to the contract substantially violated any part of the living agreement.

Remedies for such legal disputes would most likely consist of a damages award to the injured party, or an injunction. An example of an injunction would be if the court ordered one party to take a specific action, such as replacing destroyed property. Another example of an injunction would be if the court ordered one party to cease acting in a certain way.

Do I Need an Attorney For Issues Related to Cohabitation?

If you are considering entering into a cohabitation arrangement, and wish to draft a cohabitation agreement, you should consult with a local family lawyer. An experienced and local family lawyer can ensure the agreement is legally enforceable. A cohabitation agreement will protect all parties involved, and will reduce the likelihood of expensive and time consuming legal action later on.

Further, because state laws may vary regarding cohabitation and cohabitation agreements, it is best to work with an area attorney so you can receive legal advice relevant to the state in which you live. Finally, an attorney will also be able to represent you in court, as needed, should any legal issues arise.