Family Law

What Is a Cohabitation Agreement?

By Kristina Otterstrom, Attorney
Living together won't provide you with the same legal protections married couples receive, but a cohabitation agreement may help bridge that gap.

Today, more couples are cohabitating (living together) than ever before. This includes both homosexual and heterosexual couples. Cohabitation can provide a way for some couples to test the waters before jumping into marriage, but other couples may view cohabitation as a permanent or long-term solution.

What Is a Cohabitation Agreement?

A cohabitation agreement is a contract made by a couple that lives together. Cohabitation agreements are similar to prenuptial agreements, as they can address financial issues between romantic partners, including:

  • whether income will be shared or kept separate, and
  • how the partners will own property they purchase during their relationship—jointly (50/50), separately, or through another ownership arrangement.

The main difference is that prenups are made in contemplation of marriage, while cohabitation agreements are related to living together.

A comprehensive cohabitation agreement should cover important financial items like savings and checking accounts, earnings, mortgages or leases, and how all assets and personal property will be divided if a couple splits. Some cohabitation agreements also designate each partner’s responsibility for basic household expenses, vehicle loans, and rent or mortgage payments—both during and after the relationship.

Will My Agreement Be Enforceable?

The rules governing cohabitation agreements will vary depending on your state's laws. Generally, you stand the best chance of having your agreement upheld if:

  • the agreement is in writing
  • both partners signed the agreement
  • both partners voluntarily agreed to the contract, free from undue pressure or duress, and
  • the terms in the contract are reasonably fair to both partners.

In certain situations, a court may enforce an oral or implied cohabitation agreement. However, oral agreements can be difficult to prove, and you’d need clear evidence to demonstrate your position.

Certain things can’t be addressed in a cohabitation agreement. For example, if your agreement defines child custody in the event of separation, the court will throw that section of your agreement out. A child’s best interests at the time of the custody dispute are central to any custody decision, and parents can’t reach agreements about what may or may not be appropriate for a child at a future date. Also, a court may not enforce sections of your agreement regarding pensions or retirement. If you and your cohabitating partner never marry, you may not have a claim to your partner’s retirement contributions, and vice versa.

What Happens If My Agreement Isn’t Upheld?

Cohabitation agreements can prevent a lot of property disputes. In many cases, these agreements are upheld in the same way and for the same reasons courts enforce prenuptial contracts. However, an extremely unfair or one-sided agreement may be thrown out. This can pose a major challenge for a couple that has acquired a lot of real estate, assets, or debts.

If you're agreement isn't enforceable, then you may have to bring your claims in a civil lawsuit, and ask for your share of property or income. If you've been meticulous about maintaining your separate property while living together, you have a better chance of keeping what's yours. Specifically, separate bank accounts, medical bills, credit card bills, or savings accounts are usually awarded to the person whose name is on the account. If you and your partner acquired property together during your relationship or maintained joint accounts, you’ll have to provide documentation of your contributions to accounts or marital assets in order to either receive reimbursements or your share of the profits from any property you decide to sell.

Questions for Your Attorney

  • My partner and I have been living together for a year, have no children, and keep all our income and property separate. Should we consider getting a cohabitation agreement?
  • Will a cohabitation agreement be valid if my partner and I get married, or do we need a prenuptial contract?
  • My cohabitation agreement with my partner is extremely favorable to me. Does that mean a judge won’t enforce it?
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