Cohabitation occurs when a couple lives together without any formal marital relationship. Cohabiting does not automatically provide any legal rights for either individual.
The couple has to enter into an agreement or a contract in order to obtain any rights from the relationship, such as financial support or inheritance rights. Because cohabitation is not a marriage, states will not treat it as one.
For example, some state courts have not enforced certain provisions of cohabitation agreements. This will vary by state, but, in general, if a term does not comply with the local regulations governing cohabitation, it will not be upheld.
There are a wide range of views regarding cohabitation and how a relationship should be handled. Some states seek to uphold the importance of the freedom to contract.
This means that, so long as it meets the law, individuals are permitted to contract on their terms. As cohabitation between couples increases, the law has to accommodate these changes.
What Is a Living Together Contract?
Couples who are living together may create a type of agreement called a living together contract or living together agreement. This is a type of cohabitation agreement that protects their individual interests and assets as well as protects their rights as a couple.
Because a living together agreement is a type of contract, it may be helpful to have an understanding of what contracts are. Contracts are legally binding documents that are executed by parties which outline their obligations and what they may be entitled to receive in certain specific situations.
In a romantic relationship, a couple may choose to draft a contract that outlines certain specific areas of their relationship and defines ownership of any shared property. This may include things such as what will happen to their shared property, such as a residence, if they were to break up.
Because an unmarried couple may one day separate, it can be helpful to plan ahead in order to avoid conflicts in the future. For example, a marriage is a legal contract between two individuals that protects the rights and obligations that they owe to each other.
A living together contract also protects the rights and obligations that each of the partners owes to the other partner. The content of these agreements usually includes:
- Finances;
- Property;
- Debts; and
- Other issues.
A living together contract may not be helpful in every relationship. However, individuals who are likely to accumulate a significant amount of debt, property, or money may want to draft this type of contract.
This type of contract can also be helpful for older couples who want to ensure that their property is distributed the way they want it to be when they pass away. This type of agreement can also provide guidance regarding each of the individual’s rights and obligations related to issues including:
- Child custody and child support;
- Financial support during and after the relationship;
- Distribution of property after a breakup;
- Any joint bank account agreements; or
- Payment of debts both during the relationship and after it ends.
What Are the Guiding Principles of Living Together Contracts?
Living together contracts do not have to be complex and they may contain plain language. The parties to the contract may also include as much or as little detail as they desire.
In California, for example, the guiding principles of living together contracts are:
- Unmarried couples can enter into written and oral agreements to protect rights that are protected in marriage;
- Implied non-marital agreements may be found after evaluation of a couple’s conduct; and
- In the case that an implied agreement is not found, a court may infer that each partner intended to deal fairly with the other partner. Accordingly, the court may grant a partner rights and obligations based on principles of equity and fairness.
These may differ by state, so it is important to consult with a local attorney for the most accurate information.
What Should Be Included in a Living Together Contract?
These are certain issues that individuals can consider with this type of contract, including:
- Distribution of assets when the relationship terminates;
- Ownership of property that was obtained before, during or after the relationship;
- Payment of expenses;
- Daily responsibilities;
- Dispute resolution; and
- Other issues.
Each contract will be unique to the individuals involved and their living situation.
What Happens to the Living Together Contract Upon Marriage?
Living together contracts may still be enforceable after a marriage. However, the contract must have been created shortly before the marriage at a time when both individuals planned to marry.
In addition, the living together agreement must meet the premarital agreement requirements in the state.
What Is a Premarital Agreement?
Premarital agreements, also known as prenuptial agreements, are agreements that are entered into by a couple before their marriage. These types of agreements outline how the assets and debts of the couple should be divided in the event of a separation or divorce.
Prenuptial agreements require full disclosure of the finances of each individual. Generally, they must be in writing to be enforceable.
A premarital agreement must be signed before a marriage occurs or it will not be valid. Prenuptial agreements often contain certain common clauses that are intended to provide peace of mind for both parties, which may include:
- Property and financial separation: These types of clauses protect each individual’s separate property as well as protect one spouse from the other spouse’s debt;
- Alimony: This is used to determine the level of support that is owed to a spouse;
- Division of responsibilities: This outlines the responsibilities of each of the spouses after they have exchanged vows;
- Child inheritance: If one of the spouses was previously married, these provisions will ensure that the children of that marriage can keep a portion of the estate;
- Without including this clause, the estate would pass directly to the individual’s most recent spouse;
- Forum selection: This clause is included to determine which jurisdiction will govern any disputes that arise prior to the wedding;
- Choice of law: This clause outlines what laws will govern any dispute that comes up before the wedding;
- A forum selection clause determines the location and form of the dispute resolution, while the choice of law clause determines the rules the the couple are required to follow; and
- Sunset provisions: This clause states when the contract will end, as premarital agreements are not intended to govern indefinitely.
This type of contract is different from a living together agreement because it is formed in anticipation of marriage and it is not intended to govern the relationship for many years.
Should I Contact a Lawyer for Help with a Living Together Contract?
If you are considering entering into a living together contract, it is important to make a list of the things that matter most to you and your partner. This is important especially in cases where a significant amount of money or property is involved or if one of you has many more assets than the other.
It is also important to consult with a contract lawyer who can help you draft your agreement as well as ensure it complies with the specific rules in your state. Your lawyer will explain what is required for a valid contract in your state and help ensure your rights and assets are protected.
