Family Law

Do We Need a Cohabitation Agreement?

By Amy Castillo, J.D., University of Minnesota School of Law
A cohabitation agreement allows unmarried partners to define their expectations in the event their relationship ends.

If you’re in a committed, long-term relationship with someone else, but you’re not legally married, you may want to consider entering into a cohabitation agreement with your partner. It’s the best way for each of you to protect your legal interests in case you break up down the road. Cohabitation agreements, like prenuptial agreements, are a way of planning for the worst case scenario.

What is a cohabitation agreement?

A cohabitation agreement is a written contract between two unmarried people who are in a serious relationship and are sharing their lives with each other. Typically, people enter into cohabitation agreements when they’re living together, commingling (meaning, mixing together) their finances by buying or selling assets, making major purchases, or paying for bills and expenses together.

If an unmarried couple has children together, a cohabitation agreement can help them spell out their expectations for child rearing and financial support. However, the final decision about child custody and support will always be made by a judge in family court, regardless of what a cohabitation agreement says.

In some states, cohabitation agreements can also form the basis for a “palimony” request (money that, like alimony, is awarded to a needy partner after a relationship ends) from one of the partners in a committed relationship. Palimony is not available in all states.

Similarly, in some states, unmarried partners can use cohabitation agreements to make sure that both parties are covered by insurance after a relationship ends and that they have the ability to make key medical decisions for each other in the event of serious illness.

In the eyes of the law, marriage is a contract between two people that requires them to do, or not to do, certain things. By contrast, an unmarried couple is not bound by a similar contract. It is incumbent on unmarried couples to create their own legally binding contract that spells out precisely what each party is expected to do and to keep in the event the relationship fails.

How do I know if I need a cohabitation agreement?

You and your partner may have made oral (spoken) promises to each other about what you’ll do if you break up. However, oral promises aren’t usually legally binding. If you want a court to enforce your promises, you have to put them in writing and meet all the legal requirements for formalizing a cohabitation agreement in your state.

Consider entering into a cohabitation agreement if you could get legally married but choose not to, and if some or all of the following statements are true:

  • You’re in a serious and stable relationship with each other.
  • You or your partner are, or would like to be, beneficiaries under each other’s health insurance policies.
  • You and your partner want to be able to make medical decisions for each other.
  • You and your partner have children together and you understand that a family court will always make custody and support decisions, but you would like to spell out the way both of you think the children should be raised and financially supported.
  • You and your partner owned assets or owed debts before you became a couple.
  • You and your partner have purchased assets or accumulated debts since you became a couple.
  • You and your partner live together and pay your household expenses together.

If you would like to write a cohabitation agreement, contact an experienced family law attorney in your area. A good lawyer can draft an agreement that will be legally binding in the event your relationship fails. Understanding the principles and intricacies of drafting a contract can be difficult, which is one important reason you need advice from a knowledgeable attorney.

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