Plenty of people live together without getting married and don’t see a reason to do so. But without a cohabitation agreement (often abbreviated as a cohab), you risk forfeiting financial or behavioral benefits that are legally entitled to people whose relationships dissolve but are married. And while a verbal agreement is legally binding, it’s harder to prove its validity in court, experts say.
What Is a Cohabitation Agreement?
A cohabitation agreement is a legal contract signed by people who want to live together without getting married but still want to codify an understanding of financial, medical or funerary obligations to one another until and after the relationship is dissolved, or if one partner dies. A cohabitation agreement should be drafted by an attorney and notarized, although technically a verbal cohabitation agreement is legally binding. However, it will be harder to prove in court that the conversation occurred, according to Carolyn Walsh Parry, a settlement-focused divorce attorney who practices in New York City.
Cohabitation in the U.S.
American attitudes toward non-married couples living together are now more accepting than not. According to a data analysis published in 2019 by the Pew Research Center, a nonpartisan organization, 69% of American adults believe it is acceptable for an unmarried couple to live together even if they do not intend to marry. And 48% of American adults think that couples who live together before getting married are more likely to have a successful marriage.
That same data analysis found that 59% of American adults between the ages of 18 to 44 had lived with an unmarried partner at some point in their lives. A cohabitation agreement ensures certain rights or obligations in the relationship that would typically be legally conferred upon marriage.
Why Should I Consider a Cohabitation Agreement?
Why not just get married and avoid taking the time to draw up additional legal documents? According to Ken Jewell, a family lawyer based in New York City, there are any number of reasons why that might not make sense for an otherwise happy couple. Some partners may have been previously married and do not want to go through the formal wedding and marriage process again. Others may not financially or professionally be at a place in life where they feel comfortable with legal marriage, or they would like to get to know their partner better before making a lifelong commitment.
Regardless of the reason, if you are not looking to get married but want to live together, a cohabitation agreement establishes rights and obligations that would normally be conferred upon marriage in most states.
“If two people are in a long-term relationship, they care very much about each other. But for whatever reason, if marriage is not the right option for them yet they still want to provide some kind of benefit as a result of the time that they’re spending together,” a cohabitation agreement should be considered, Jewell says.
This type of contract also could be used to dictate financial, medical or funerary benefits that would apply in the time between living together and a planned legal marriage, although having a separate living will for end-of-life decisions is the better way to detail what you want to happen in that scenario, says Walsh Parry. A cohabitation agreement could also be drawn up among platonic roommates to ensure appropriate financial or behavioral obligations while living together that are not otherwise incorporated in the rental agreement or lease, says Jewell.
“Whenever you’re dealing with money, it is incredibly helpful to have something in writing because you just assume that everybody’s getting along, everybody’s friends, and you just assume people will do the right thing,” adds Walsh Parry. “And it’s incredible how often people do not do the right thing.”
What Should Be Included in a Cohabitation Agreement?
The potential division of current or future financial assets should be considered in a cohabitation agreement. That could include determining who will receive physical property, investments or earnings either mutually or respectively held. Financial obligations — who is responsible for which expenses going forward — should also be considered. For example, if one person is living with their partner, who owns the home, a cohabitation agreement could specify who is responsible for specific costs related to its upkeep.
It also should include whether a form of spousal support would be granted to the partner with fewer earnings or financial means. Language addressing ongoing financial payments beyond the course of the relationship might be included when one spouse opts to fulfill an unpaid caretaking role instead of paid labor outside of the home. A cohabitation agreement can also outline reasonable expectations of life quality during the relationship (i.e., the frequency or funding of leisure, health or daily life activities).
The “effective dates” of the agreement should also be clearly specified, meaning both when the contract terms begin to apply and how the couple will determine when the relationship has ended and the cohabitation agreement’s provisions kick in. Describing “trigger events” in the cohabitation agreement helps define the end of the relationship and the start of shared asset division, says Walsh Parry. Effective dates can also define when certain property becomes equally shared and when it is considered to be the possession of just one partner.
What Shouldn’t Be Included in a Cohabitation Agreement?
While division of financial obligations should be included, any language related to how a couple will take care of a child should not be included, in Jewell’s opinion.
“I would not include that in the agreement only because courts generally want to look at the relationship concerning children at the time the relationship is dissolving,” Jewell explains. “In other words, if you enter into a (cohabitation) agreement with someone 10 years before the breakup, and the breakup is because someone has become a cocaine addict, the (earlier) provisions may not be in the best interest of the children.”
He adds that language regarding child support also shouldn’t be included, as one partner may end up earning an extremely large amount between when the agreement was signed and when it may need to be executed that is not reflected in the contract. Walsh Parry, however, suggests that detailing financial obligations for children in a cohabitation agreement is beneficial. And while certain behavioral obligations can be reasonably included — such as stipulating that children be raised under the tenets of a specific religion — many are likely unenforceable in the court.
“People will try to put in stuff like, ‘the child will only be fed organic vegetables,’ and then dad gives them Cheetos,” says Walsh Parry. “And a court’s not going to do something about that.”
Additionally, while any promise of financial benefits upon death can be included in a cohabitation agreement, Jewell says that including those assurances in a final will and testament is preferable. End-of-life decisions can be outlined in a cohabitation agreement but similarly would be better incorporated in a living will.
[Read: 10 Steps to Writing a Will.]
Cohabitation Agreements and Prenups
According to Walsh Parry, a cohabitation agreement is “really no different from a prenuptial agreement in that the only time that that cohabitation agreement is really going to come into play is if there is a breakdown of the relationship.”
“If you are deemed legally married, you’d be looking to remove rights with a prenup, but if you are not legally married, you’re looking to add rights with a (cohabitation agreement),” adds Jewell.
While both lawyers noted that there are relatively few states where common law marriages are recognized, Jewell notes it’s important to include language stating unequivocally that you are not married to this individual. That will help prevent any common law marriage statutes from applying to your living situation.
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