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Breaking Up is Hard to Do: Cohabitation Agreements Make it Easier

Cohabitation Agreements

by Lovette T. Mioni


According to a U.S. Department of Health and Human Services report, more and more couples are choosing to live together – either in a premarital cohabitation arrangement, or in lieu of marriage altogether.  

The report showed that 48 percent of women aged 15-44 interviewed between 2006 and 2010 lived with a partner without marrying. Only 34 percent of women in the same age group did so in 1995.

Many couples getting ready to officially tie the knot will consider a prenup – a smart choice for anyone with assets to protect, whether they be business interests, family heirlooms, or growing financial expectations. The growing number of couples who choose not to marry, or to delay marriage, should protect themselves too.

Cohabitation Agreements:
Why Do You Need One?

Unmarried couples living together for several years (or any amount of years) do not have a common law marriage in California and community property laws do not apply to unmarried couples.

However, one party could allege there was an agreement between the parties that Party “A” would provide for Party “B”, creating an interest in Party “A” assets that otherwise wouldn’t arise absent an agreement. Courts have held that express or implied contracts between unmarried cohabitors are enforceable. 

For example, in the case Marvin v. Marvin, the Court commented, “[A]dults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights.”   

Individuals may unintentionally acquire/relinquish certain rights because of their relationships with their partners. A Cohabitation Agreement is a written contract between two people that are not married. It sets forth the mutual rights and obligations regarding  property, financial support, and estate planning.  We recommend implementing a Cohabitation Agreement to provide each party with financial expectations and general obligations for the relationship.

Consider drawing up a Cohabitation or Living Together Agreement to determine:

  1. Financial responsibilities.  

  2. Ownership for joint purchases, i.e. vehicles, furniture, home, etc.

  3. Residential financial obligations, i.e. rent or mortgage, utilities, insurance, etc.

It's not just the breakup that can be hard on cohabitants. The death of a partner can also create unforeseen hardships for the survivor. A cohabitation agreement may be used to determine if a surviving partner has the right or obligation to retain any property acquired after the couple started living together.

All in all, it's best to be prepared for any eventuality, whether a couple cohabitates until death do they part, or not. Each party in a cohabitation relationship should have his or her own legal counsel ensure their individual interests are determined in a Cohabitation Agreement.

Contact our Family Law Practice Group for more information. 

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