Cohabitation Agreement: What Is It and Why You Need One

By: Gabriel Cheong
Last Update: November 01, 2016

In a perfect world, two people moving in together instinctively know which partner will pay the utility bills, cover the rent, walk the dog, and buy the auto insurance.

But most of the time, the perfect world is not the world we inhabit.

In the real world of cohabitation, two people deciding to live together often can’t agree about who pays for the weekly garbage pickup during the relationship, or who keeps Fido and the wireless alarm system if the relationship crumbles.

Fortunately, there has been a slow evolution in the courts and society across America. Now, in almost every state of the Union, straight and gay couples can sit down and agree about a variety of key terms even before they move in together, and know that these terms, in most cases, will be enforced by the courts.

In other words, cohabitation agreements have gone mainstream.

These cohabitation agreements can cover everything from childcare to payment of student loans. They can clarify expectations and give each partner a real understanding and assurance that they won’t be cut out of important healthcare decision-making or be left penniless with no means of support.

There is one school of thought that says creating a written document which evaluates what happens when a relationship ends is like, on some level, taking the “magic” out of a relationship right when it starts.

But for many people, a well-drafted cohabitation agreement could help get a more intimate relationship off on a good footing, or sustain an existing important relationship for untold years to come.

What Exactly is a Cohabitation Agreement?

In most cases, a cohabitation agreement is a contract between two parties that will be living together or who may already be living together.

It can be comprehensive so that there is little doubt left about any money spent or saved, or it can be limited to making certain that one person gets recognition for the hard work of child-raising when not earning an income.

But at its core, such an agreement sets out expectations of behavior and action, and creates guidelines in the event problems occur and the couple parts so that each person has legal rights that can be enforced by courts and recognized by others.

Why Would I Need a Cohabitation Agreement?

If you look at the numbers, cohabitation across the United States is on the rise. According to US census figures just from 2009 to 2010, there was a 14% increase in the number of all cohabiting couples in just one year, jumping to more than 8,100,000.

With such a rush of people looking to step into an exciting new phase of their relationships, there are many reasons why a cohabitation agreement might be worth looking into, including:

  1. One person owns a house or other property, and the couple wants to be clear what happens to it if their relationship ends, and who stays in the house.
  2. They want to agree up front who pays the short- and long-term bills, including everything from phone and utility bills to student loans and mortgage payments.
  3. They want to clarify what happens to other “big ticket” items the couple buys during the relationship, even if only paid for by one of the couple.
  4. They need some guidelines established about how each party will be supported if the couple splits, including disposition of bank and investment accounts.
  5. If there’s a medical emergency, agreed provisions can help one person act as a medical conservator or guardian on behalf of the other partner.
  6. If one person is the “stay-at-home parent,” making certain that partner’s contribution is recognized if the relationship ends.
  7. If one partner earns substantially more than the other, the end of the relationship could leave one person destitute without some form of protection.
  8. If there is a child or children, what kind of support the children will get during the relationship, and continuing support if it ends.

In short, it could be a thoughtful way to work out problems that could come up during the relationship before a rift occurs that could end the relationship. And it also could minimize the scrambling and jarring reality of the unknown if the relationship, in fact, does end.

Are Cohabitation Agreements Recognized by the Courts and Places Like Hospitals?

Not too many years ago, there were still several states like Illinois, Georgia, and Louisiana that often refused to enforce the terms of these agreements.

Even in the latter part of the 20th Century, the laws affecting relationships in many states strongly favored the institution of marriage. Creating a web of protections for people in relationships that were unmarried, according to the states, just undermined the institution of marriage.

But as society and its norms have changed, state laws and the courts have also shifted. Today, the law of contracts in most states provides a solid foundation for two people to agree on sensible terms that should exist during a relationship and what should happen if the relationship ends.

What Steps Do I Need to Take to Make Sure That My Agreement is Enforceable?

A cohabitation agreement may not survive the scrutiny of a court of law unless certain steps are taken when it is created:

  1. Give both partners all the time they need to review the agreement, with full disclosure. If one partner has a lawyer, the ideal situation would be for both partners to have separate attorneys, but not one shared counsel.
  2. Terms of the agreement cannot be inequitable, which risks disfavor from a court and a refusal to enforce inequitable terms.
  3. List all property of both partners in the agreement, including separate and shared assets, debts, and others items of importance and value to the couple.
  4. Make certain none of the terms are against the best interests of the children.

Cohabitation agreements are not for everyone. But for those couples that can bear the thought of doing somewhat of a “personal inventory” on their behaviors and needs before, during, and after the relationship, the results could be wonderful and pay loving dividends the rest of their lives.

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