Cohabitation Agreements

As an increasing number of people chose to live together rather than marry, we see an increasing  number of questions about cohabitation. Whether a couple is cohabitating before marriage, or instead of marriage, one thing is clear – non-married partners do not have the same rights to property, spousal support or other benefits that married couples do. Absent a co-habitation agreement that clearly defines the rights, expectations and obligations of the parties, there is little the court can do to address issues that arise when a non-married couple separates. 

It is important to note at the outset that California does not recognize “common law” marriage. A common law marriage used to refer to the belief that an informal, yet legally binding relationship existed after a couple lived together and held themselves out publicly as husband and wife for at least 7 years. Common law marriages are no longer recognized in any community property state such as California.

What is a cohabitation agreement?

A cohabitation agreement is a binding contract between parties who are in a relationship and usually living together, but are not married. Cohabitation agreements are not common and can be burdensome. Who wants to ask their new significant other to enter a written contract defining what happens when they split up? Most couples would prefer to avoid the awkward conversation especially when you do not know if you are in it for the long haul. However, a cohabitation agreement is the only way to protect your right to reimbursements for payments toward a mortgage on a house that you may or may not be on title to, or for debts that one party paid off on behalf of the other. 

For a sample template of a cohabitation agreement from FindLaw, click here.

What terms should be in a cohabitation agreement?

Non-marital partners have the right to enforce express or implied agreements for support or property sharing during the cohabitating relationship, in the event of a separation.

When you are in love, you generally do not think about getting reimbursed down the road for things that you pay for.  This is a common issue that we see in non-married partners.  Other common issues:

• If you moved into your partner’s home and are paying the mortgage, you should know you do not have a right to get repaid for these payments, and these payments do not give you an interest in the property absent a clear, written agreement. 
• If you decide to move in with a partner and give up your job to raise kids, help them build a business, or just to take care of the day-to-day affairs of both partners, you have no right to support if you split up and you have no interest in the business you may have helped to build.  
• If you support a partner and pay all or some of their credit card debt, student loans or car payments, you do not have a right to reimbursement absent a very clear, written agreement that protects this right to reimbursement. 

Child support and pets are also common issues in non-marital separations, and you can read more about these particular issues in Divorce & Pets and Child & Spousal Support Basics.  Child support is an issue regardless of the marital status of the parents.  In California, both parents have an obligation to support their children even if they were never married.

Have you discussed with your partner what happens if they decide to stop working or lose their job? What is the plan if you take on a massive debt for your partner?  What would happen to the assets if you separated? If you have had these discussions, put these agreements in writing!  You both need to be very clear what your obligations and expectations are, and what you both get out of this agreement.