A cohabitation agreement or a “common law partner agreement” is a written contract between unmarried couples who live together but choose not to be married. The agreement describes their property rights and financial obligations during and after the time they reside at the same premises.
Key Takeaways
- Purpose: Encourage clear communication and protect each partner’s assets
- Need for Updates: Essential as partners’ living preferences and needs change
- Consequences Without One: Undesirable division of property if the relationship ends
- What Is a Cohabitation Agreement?
- Why Should You Have a Cohabitation Agreement?
- Legal Differences: Cohabitation vs. Marriage
- What to Include in a Cohabitation Agreement
- States That Recognize Common-Law Marriages
- How to Write a Cohabitation Agreement
- Cohabitation Agreement Sample
- Frequently Asked Questions
What Is a Cohabitation Agreement?
A cohabitation agreement or a living together agreement is a legal document that describes the property rights and financial obligations of an unmarried couple who lives in the same residence. This contract dictates their arrangement while they’re together and explains what happens if the relationship ends.
A couple begins creating this agreement by meeting to discuss their desired terms and conditions. They may also consult an attorney for help agreeing on more complex matters. Once they agree on the terms, they can draft the agreement and sign it.
Is a Cohabitation Agreement Legally Binding?
Yes, a cohabitation agreement is legally binding as long as both parties sign it and it abides by the regulations in their jurisdiction. If a relationship ends and the parties have a dispute, a court can enforce the document.
Why Should You Have a Cohabitation Agreement?
A cohabitation agreement is beneficial for parties who want to live together but don’t want to be bound by state and federal marriage laws.
Generally, the law grants limited or no legal status to unmarried cohabitating couples. So, a cohabitation agreement is a way to determine the partners’ rights and obligations during the relationship and afterward.
You should use a living together agreement when you and your partner know you will live together for the long term but do not want to get married. This contract encourages transparent communication and provides legal protection by establishing clear provisions for financial responsibilities and property division.
What Happens If You Don’t Have a Cohabitation Agreement?
Not having a cohabitation agreement can present serious legal and financial risks. For example, if you help your partner make mortgage payments but they own the house, you won’t have any right to the property if you separate without a pre-established agreement.
Simply living together doesn’t create a contractual relationship or grant you a property settlement (or inheritance) should you break up or if one of you passes away unexpectedly.
The end of a relationship can be an emotionally enduring process. Still, you can eliminate some stress by establishing guidelines for financial responsibilities and property division while you’re on good terms with your partner.
Legal Differences: Cohabitation vs. Marriage
Refer to the table below to see how cohabitation differs from marriage, as you may discover the need for a cohabitation agreement if you live with a partner and you aren’t married:
Cohabitation Agreement | Marriage | |
---|---|---|
Who Can Enter | No requirements. Anyone can create a cohabitation agreement | Numerous requirements which can vary depending on your state, e.g. marriage license, age minimums, a ceremony, officiator, witnesses, etc, |
Termination | Can be terminated informally but can have the same emotional cost as the end of a marriage. | Requires the involvement of the court, e.g. legal separation, divorce and can be of great financial and emotional cost. |
Property Division | Can divide property if outlined in the agreement but requires legal workarounds to have the same property protections as a marriage | Has stronger legal protections in place for the division of property |
Right to Alimony | Partners can only get financial support if outlined in the agreement | Spouses may have a legal right to alimony |
Decision-Making | Without legal workarounds, only the relative of an ill or incompetent partner has the authority to make financial or health decisions on their behalf | Spouses have the authority to make legal decisions for each other if one falls ill or incompetent |
Inheritance Rights | Partners have no inheritance rights unless specified in the deceased's partner's will | Spouses have a legal right to inherit a deceased spouse's property |
Paternity Rights | The father in a cohabiting relationship may have to prove their paternity through blood tests and legal methods | A father in a marriage has paternity rights by default |
Child Support | There is no legal obligation for the father in a relationship to support children during cohabitation, but it becomes a requirement when paternity has been proven | The father is legally obligated to support children during the marriage |
What to Include in a Cohabitation Agreement
A simple cohabitation agreement should generally have at least the following elements:
- Property accumulated during the relationship: Define how to divide the property you accumulate as a couple during your relationship.
- Property acquired by an inheritance or a gift: Determine if you want to keep items you receive via an inheritance or as a gift as separate property.
- Property acquired before the relationship: Decide if you want to separate or combine the property each person acquired before they entered the relationship.
- Separation or death: Determine what happens if the relationship ends or one partner passes away.
- Expenses: Figure out how you and your partner will pay for household expenses. Depending on your financial situation, it may make sense to divide them equally. Alternatively, you may allocate expenses according to each partner’s income or combine all your resources into one account and use them to pay expenses when they arise.
- Dispute resolution: You may include how to solve future disputes, like arbitration or mediation.
- Child support and child custody: Even though state laws govern child support and custody, you can still outline your desired terms in a cohabitation agreement. If you and your partner break up, you can have a starting point for how to handle arrangements with your shared children.
What to Exclude
Some elements to omit from a cohabitation agreement include:
- Personal details: Omit personal or intimate information regarding your relationship that don’t have direct legal relevance.
- Unreasonable demands: Exclude unreasonable demands that unfairly benefit one partner.
- Vague language: Make the language in your cohabitation agreement as specific as possible. Define any unclear terms.
States That Recognize Common-Law Marriages
A common-law marriage is when a couple doesn’t have a marriage license but is still legally married. A common-law marriage meets the following requirements [1] :
- Both partners consider themselves married.
- The partners live together.
- The partners present themselves as a married couple.
Depending on where they live, couples in a common-law marriage may have similar benefits to couples in traditional marriages. However, some states limit the benefits of common-law marriages. You can use a cohabitation agreement to clarify property and financial rights in the relationship.
Explore the states that allow common-law marriages to some extent:
State | Conditions Under Which Common-Law Marriage Is Allowed | Laws |
---|---|---|
Alabama | Recognizes common-law marriages if they began before January 1, 2017. | AL Code § 30-1-20 |
Colorado | Recognizes common-law marriages if they began before January 1, 2006. May recognize later common-law marriages if both parties are at least 18 and the marriage doesn't violate other laws. | CO Code § 14-2-109.5 |
Georgia | Only recognizes common-law marriages if they began before January 1, 1997. | GA Code § 19-3-1.1 |
Idaho | Only recognizes common-law marriages if they began before January 1, 1996. | ID Statutes § 32-201 |
Iowa | Intends for common-law marriages to be for dependent support, but it's not prohibited in other cases. | Iowa Admin. Code r. § 701-73.25 |
Kansas | Recognizes common-law marriages as long as both parties are at least 18. | KS Statutes § 23-2502 |
Montana | Doesn't invalidate or prohibit common-law marriages. | MT Code § 40-1-403 |
New Hampshire | Recognizes common-law marriages when the couple acknowledges each other as husband and wife and lives together for at least three years. | NH Statutes § 457:39 |
Ohio | Only recognizes common-law marriages if they began before October 10, 1991. | OH Revised Code § 3105.12 |
Oklahoma | Recognizes common-law marriages if both parties are at least 18, not related by blood, live together, and are financially interdependent. | 1981 OK CIV APP 21, 629 P.2d 808 |
Pennsylvania | Only recognizes common-law marriages if they began before January 1, 2005. | PA Statutes § 23.1103 |
Rhode Island | Recognizes common-law marriages if the two partners live together and present themselves as married to the public. | RI Statutes § 15-1-7 |
South Carolina | Recognizes common-law marriages with no specific limitations. | SC Code § 20-1-10 |
Texas | Recognizes common-law marriages if both parties consent to the marriage, tell others they're married, and live together. | TX Family Code § 2.401 and TX Family Code § 1.101 |
Utah | Recognizes common-law marriages if the parties live together and present themselves as married to others. | UT Code § 30-1-4.5 |
How to Write a Cohabitation Agreement
Step 1 – Fill in Both Parties’ Information
The first step in writing a cohabitation agreement is filling in the parties’ information, including your names and current or intended addresses. You can also record the date you write the agreement and the governing state.
Step 2 – Include the Current Circumstances
This section typically refers to whether either party has any children from previous relationships. You should specify if there aren’t any kids. If there are, you need to write down their names and ages.
You should also clearly outline the obligations of each parent to their children. Unless one partner obtains a court order of adoption, the agreement assumes each person is responsible only for their children.
Step 3 – Establish an Effective Date
Discuss with a partner and decide when the cohabitation agreement will come into effect.
IMPORTANT
Remember that both of you need to have begun cohabiting by this date. Otherwise, the contract will become null and void.
Step 4 – Provide Property Information
You can list the property you acquired before becoming a couple that you want to treat as separate property, including financial assets, household goods, vehicles, and other items.
Any property listed as “separate” in the cohabitation agreement will not be divided with the other person if death or separation occurs.
Your shared property, or joint property, is a property that both parties jointly own. These will be divided between both parties upon death or separation. Both parties can agree upon how to divide this property before signing the agreement.
Step 5 – Include Any Debt Information
Although not necessary, listing your debts lets you clearly detail who is responsible for which debts.
Without a cohabitation agreement, you may have to assume your partner’s debts if you split up.
You should also specify any shared debts you and your partner have. Typically, shared debt occurs due to a joint purchase secured by a joint loan for items like a vehicle or home.
Step 6 – Specify Household Contributions
Shared living expenses can be divided, with each party paying different percentages or dollar amounts depending on the situation. You can also include information about whether joint accounts will be used and the ownership interests of purchases made through that joint account.
Step 7 – Include Termination Terms
You should provide terms about the protocols for the agreement’s termination.
Step 8 – Sign the Agreement
Once you have filled in the other sections, both parties should sign the agreement so it becomes a legally binding contract.
Cohabitation Agreement Sample
Download a cohabitation agreement template as a PDF or Word file below:
Frequently Asked Questions
Can a cohabitation agreement be overturned?
Yes, a cohabitation agreement can be overturned. When the court reviews the contract, it will consider the provisions mentioned in the document and check whether they’re grossly unfair. If the agreement has unfair conditions, it may favor one partner to such a degree that the other partner would have a financial disadvantage or a significantly reduced quality of life.
The court will also scrutinize the agreement if children are involved, as they will only approve contractual agreements in the children’s best interests.
Why do people cohabit instead of marry?
Couples often cohabitate to see if they’re compatible with each other before marrying.
Should I pay rent when my partner owns the house?
Whether you pay rent when your partner owns the house is a personal decision you can make as a couple. Once you discuss different factors, like each partner’s financial situation and other contributions, you can finalize your decision in a cohabitation agreement.
How do I divorce from a common-law marriage?
There’s no formal divorce process for a common-law marriage. If you and your partner decide to break up, you can separate without going through a legal process.
This separation makes it dissimilar to the separation from a traditional marriage. If you want to divorce a partner to whom you’re traditionally married, you can use a divorce settlement agreement. If you established a prenuptial agreement, you may also use this document to guide the end of a marriage.
What is palimony?
Palimony is the payment from one partner of an unmarried couple to the other after they dissolve their relationship. It combines the words “pal” and “alimony.”
Do I need to update a cohabitation agreement?
Yes. If anything about your needs or preferences in your and your partner’s living situation changes, you can update your cohabitation agreement. Consult a lawyer when you make changes to ensure the document remains legally binding.
Can I use a cohabitation agreement for a same-sex relationship?
Yes. Partners of the same sex living together can write a cohabitation agreement.