Creating a Livable Cohabitation Agreement

When you are living with someone, whether you are in a relationship or roommates, having a livable cohabitation agreement can help protect you in the event of a dispute or if your relationship ends. Protect your legal rights in your living situation by creating a legally binding and comprehensive cohabitation agreement.

What is a cohabitation agreement?

Whether you own the home you live in or are renting, when you live with someone else, disputes can arise. For example, you may disagree about who is responsible for paying the remaining lease term if either of you decides to break the lease. These disputes can occur not only with roommates but also with unmarried couples as well. Creating a cohabitation agreement is one of the best ways to protect both parties. These arrangements can carefully outline both parties’ responsibilities and rights while living in the residence. 

For example, you may want to include provisions that prohibit substance abuse, payment of child support if you share children, and stipulations that discuss whether additional roommates will be allowed in the home. The terms included in your cohabitation agreement should include both financial obligations and non-financial stipulations, including division of the household expenses, custody and visitation rights, other legal rights, and monetary designations if either party passes away.

When written in compliance with both state and federal laws, cohabitation agreements are binding contracts that can be enforced in a court of law. However, if your nonmarital cohabitation agreement includes unlawful or unjust stipulations, it could be voided.

It should be noted that cohabitation agreements, also known as “cohabs” or living together contracts, are not the same as cohabitation clauses that are included in divorce settlements. A cohabitation clause, also referred to as a morality clause, is a stipulation that states parents will not allow romantic partners to stay at the home in the presence of the shared children. 

Key components of a cohabitation contract

When writing a comprehensive cohabitation contract for unmarried partners, it is important to consider which detail should be included. Although you may currently be happy with your choice of a romantic partner, if there is a disagreement or you break up, a cohabitation agreement can help protect you and define the division of shared debts and financial assets. This way, you do not have to worry about getting taken advantage of or forced to go to court to hold your roommate or ex accountable for their responsibilities.

Some of the most common provisions included in cohabitation agreements include:

• Child support obligations
• Defining separate property and shared property
• Determining how property will be divided
• Discussing how shared debts and assets will be distributed
• The distribution of funds within joint bank accounts and personal property
• Who is responsible for making the mortgage payment
• What happens to real estate if you decide to end your relationship
• Whether real estate has both parties listed on the deed
• Who is responsible for paying utility bills, insurance costs, and other necessary living expenses
• How much time either party has to move out if the relationship ends
• Who is responsible for making rent payments
• Whether both party's names are included on a rental lease agreement
• Child custody and visitation plans
• How furnishings will be divided if you break up
• Who will be responsible for debts that occurred before cohabitating

Whether the higher-earning partner will provide financial assistance to the other if the relationship ends

Typically, any assets or deeds that are jointly owned property and brought into the cohabitation plans will remain separate property. This means the individual that brought them into the relationship will retain ownership when breaking up.

However, any property, assets, or debts that were brought in for the benefit of the relationship may be considered shared property and will need to be divided accordingly. You may also want to consider adding provisions that require mediation in any attempt to enforce the cohabitation agreement through litigation.

Benefits of having a cohabitation agreement

The benefits of having a valid cohabitation agreement are undeniable. They work similarly to prenuptial and postnuptial agreements.

You are essentially working out the terms of your break up or the end of your relationship in advance while both parties still care about the other's safety, health, and well-being. Other benefits of free cohabitation agreement include:

• Legal protection: Cohabs are legally binding when written in accordance with the law. Without a cohabitation agreement, unmarried partners may find themselves arguing over property and financial issues. A cohabitation agreement can help reduce the likelihood of these conflicts and offer resolution in advance.
• Transparency: Even if you trust your partner 100%, writing a cohabitation agreement gives you an opportunity to communicate responsibilities and expectations openly. Drafting your cohabitation agreement gives you a chance to work together to determine how your shared belongings will be divided and what both parties' responsibilities will be if the relationship ultimately comes to an end.
• Peace of mind: No matter how happy you are, there is always the possibility that the relationship could fall apart. A cohabitation agreement creates peace of mind that these decisions have already been discussed. You will not have to worry about being left with nothing or having your ex take advantage of you if they feel you have wronged them in some way or are responsible for the end of the relationship.

Are cohabitation agreements enforceable?

Cohabitation agreements have been enforceable for over 50 years. In 1976, the California Supreme Court held justification that allows non-marital agreements to be considered enforceable contracts in a court of law.

A cohabitation agreement is legally binding and enforceable as long as it is written following the appropriate legal protocol. Your nonmarital living contract will include many of the elements contained in a valid contract and will, therefore, be enforceable in a court of law. 

You may want to have an experienced legal advocate review your drafted cohabitation agreement to ensure it is in compliance with these laws. Both partners will need to understand the provisions included within the contract and sign the agreement of their own volition.

Contracts entered into through fraud, coercion, or force could be tossed out by the system. You can increase the validity and credibility of your cohabitation agreement by signing the legal document in the presence of a licensed notary.

Requirements and financial support

There are several legal rules regarding how the cohabitation agreement is written. Depending on where you live, the requirements for cohabs may vary. Both parties need to have independent legal counsel to ensure they are entering into the contract voluntarily and understand the provisions included.

Both parties should be prepared to fully disclose their assets, debts, and any other requirements they want included in the cohabitation agreement. Failure to disclose could void the contract. 

It is also worth noting that some states will prohibit certain provisions from being included or enforced in what is commonly referred to as a "palimony agreement.” Some examples of these stipulations include:

• Provisions that require affection, love, or sexual services
• Considerations regarding cooking, homemaking, or companionship
• Any stipulations that involve the couple's sexual or intimate relationship

For example, the court system may not enforce your cohabitation agreement if one partner agrees to provide companionship or homemaking if the couple pools their resources.

Essentially, anything involving a sexual relationship should not be included in the benefits described in your cohabitation agreement.

Most systems will also require that your cohabitation agreement be in writing and signed by both parties before it can be considered valid. However, many states may also recognize implied and oral cohabitation arrangements. 

State considerations regarding common law marriage

It is important to keep in mind that your cohabitation agreement may not be legal in all 50 states. It is important to review your state's laws when drafting your cohab plans.

For example, in Illinois, the cohabitation agreement will not be unenforceable. The state law says that cohabs are in violation of Illinois public policy since common law marriage is unlawful in Illinois according to 750 ILCS 5. 

However, you may be able to draft a detailed cohabitation agreement as long as the stipulations are independent of a relationship with marriage-like qualities.

This means, despite the fact that Illinois does not recognize common law marriage, as long as your arrangement does not contain provisions that have to do with your personal relationship, it may be enforceable in Illinois courts.

Louisiana and Georgia residents may also find it difficult to enforce a legal contract like a cohabitation agreement. This is because these states consider sexual relationships between unmarried individuals to be "immoral,” as described by Schwegmann v. Schwegmann, 441 So.2d 316 (La. Ct. App. 1983 and Ga. Code § 13-8-1 respectively. 

If you live in one of these states where cohabs may be seen as unenforceable in a court of law, it may be in your best interests to connect with a family law firm or a local attorney who can provide legal advice and help you write an arrangement that is written with these laws in mind.

This way, you can still protect yourself if the relationship comes to an end with your financial obligations clear and the ability to move on from your prior relationship.

Cohabitation agreement: the legal document vs. prenuptial agreement

Cohabs are similar to prenuptial agreements. Prenups are written by couples who have yet to become legally married, while cohabs are written for individuals in non-married relationships, whether those relationships are romantic or platonic.

However, if you are in any relationship, your cohabitation agreement can include stipulations about how assets, property rights, debts, and other decisions will be handled if you decide to get married.

This might include the requirement that a prenuptial agreement be a written agreement between you and your unmarried partner. A prenup will have much of the same information that your cohabitation agreement included, such as whether spousal support will be paid if your marriage ends and how your marital property will be divided. 

In some states, your prenup can also include child custody, visitation, and support provisions.

Generally, if either spouse brings in valuable property, or assets, or is burdened by debt, these will be considered separate property and will not be divided equally or equitably in divorce.

Instead, the spouse that brought them into the relationship will retain property rights. Get legal advice from a law firm if you are not sure whether debts incurred prior to the legal marriage.

Cohabitation agreement vs. rental agreement

Cohabitation agreements are very similar to rental agreements, but cohabitation agreements can be written between romantic partners, whereas rental agreements are generally written between individuals who have no pre-existing or romantic relationship. Rental agreements, also known as roommate agreements, are more straightforward. 

They will include strict requirements about how living expenses will be divided, who will be responsible for paying a portion or all of the rent, and who will be responsible for purchasing rental insurance.

Rental agreements should also include details about which party will be responsible for continuing to pay rent if either roommate vacates or abandons the premises. You can use legal advice from an in-depth online service provider to draft a cohabitation or roommate agreement when you want to protect yourself as an unmarried individual living with someone else.

FAQs

Can a cohabitation agreement be changed or revoked?

Yes, cohabitation agreements can be modified at any time if both parties agree to the revision requests. Once a cohabitation agreement is in place, it should not be revoked unless it includes stipulations that may be deemed unjust or unconscionable.

What happens if there is no cohabitation agreement?

If you do not have a cohabitation agreement in place, you may leave yourself open to legal issues if a dispute arises or the relationship ends. Some states may recognize domestic partnerships. However, cohabitation agreements provide additional legal protections.

Without this protection, you could be stuck making mortgage payments if your partner abandons the property, covering all remaining months of rent, or losing access to the financial support you had come to depend on, for example.

Are cohabitation agreements only for unmarried couples?

No, cohabitation agreements can be written for unmarried couples and individuals who have platonic relationships. Cohabitation agreements may be beneficial if you keep your finances separate, blended finances, have joint debts, or want to be clear about household and financial expectations and responsibilities when living together.

Why should I put a cohabitation property agreement in writing?

If you do not put your marriage license cohabitation property agreement in writing, it may not be enforced in a court of law. Although some states may recognize implied or spoken agreements, getting your cohabitation agreement in writing should be standard.