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Each year, more American couples decide to live together without getting
married. US Census data demonstrate a consistent
rise in the number of households composed of unmarried couples of the opposite
sex. As of 2015, there were over 8 million of these households—a number
that doesn’t take into account the hundreds of thousands of households of unmarried
same-sex couples.
This trend continues despite the fact that society has traditionally
frowned on cohabitation (it’s actually still illegal in Michigan and
Mississippi). With so many people making the choice to commit to each other
without getting married, questions arise about how to deal with legal issues
for these extramarital relationships. Fortunately, a cohabitation agreement can
answer some of these questions.
What is a cohabitation agreement?
At its most basic, a cohabitation agreement serves as a replacement
for the marriage contract. When two people get married, they enter a binding
legal arrangement that brings with it certain rights and responsibilities. A
cohabitation agreement seeks to replicate some of those legal rights and
responsibilities for unmarried couples. It is not a one-for-one match for state
and federal laws, but it many situations it doesn’t need to be, and couples can
benefit from the ability to customize the agreement to fit their situation.
What should it include?
Because they are designed to address the needs of a specific couple, the
terms of a cohabitation agreement can vary greatly. Even so, there are certain
items that should always be addressed, including those related to property,
debts, and end-of-life and end-of-relationship arrangements. Frederick Hertz, a
family attorney with experience in drafting cohabitation agreements, told the New York Times that most of the
agreements he draws up involve financial arrangements and fall into one of two
categories: “those that prevent couples from going after each other’s assets if
they part ways and those that provide financial security for the lower-earning
partner after a breakup.”
Cohabitation agreements are not just about distribution and dissolution,
however. Well-drafted ones will also outline how financial assets are handled
during the relationship. For example, if one party is the primary wage-earner,
the agreement may specify that person is responsible for paying household
expenses, either exclusively or at a higher percentage. Similarly, if one party
enters the relationship with significant debt – for example, a large student
loan – then the agreement could assign responsibility for the loan exclusively
to the original debtor.
Speaking of education, what if one person works while the other attends
school, say to become a doctor or a lawyer? The cohabitation agreement could
provide a framework for that arrangement and offer options for how the partner
who worked to put the other through school will be compensated if the couple
breaks up.
Many cohabitation agreements also spell out medical and health-care
responsibilities. These could include the right to make emergency medical
decisions or to serve as a guardian or conservator.
Are there drawbacks?
As with any contractual agreement, there’s always the possibility that one
party might challenge the agreement, in whole or in part, in court. Moreover,
cohabitation agreements were not always universally recognized by courts in
various states. Illinois, for example, has had a complicated history in handling the legal
rights of unmarried couples.
Also, a cohabitation agreement is not the only legal document that the
parties need. It is not a replacement for a well-drafted will, living will, or
durable health care power of attorney. Each of these documents outlines a
person’s wishes, and each has a much longer history of enforcement in the courts.
Another perceived drawback might be the view that a cohabitation agreement
is unromantic or simply a prelude to a breakup. In this way, a cohabitation
agreement is similar to a prenup, which also gets a bad
romantic rap. Recent data from a study conducted by Avvo doesn’t bear this
perception out—at least with respects to prenups. Only 20% of the people
surveyed said they “would doubt their partner’s feelings for them if their
partner asked for a prenup.” It doesn’t take much of a leap to imagine that
people would feel similarly about cohabitation agreements, even though that
question wasn’t specifically asked.
Get the right advice
While the basics of a cohabitation agreement—who, what, where—are
relatively simple—reaching out for help from an attorney can make a big
difference. Family law attorneys with
experience in assisting unmarried couples will be able to customize an
agreement that works for that couple. If possible, before signing anything,
each person should have their own attorney review the agreement.
Taking the time to hammer out the legal details of a couple’s relationship
might sound tedious but will be a relief when tough decisions have to be made.
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