
Do You Need a Cohabitation Agreement? What Unmarried Couples Should Know Before Moving
In the modern world, more and more couples are choosing to live together without getting married. While cohabitation offers flexibility, emotional connection, and often helps couples financially, it also comes with some legal uncertainties. Particularly, cohabitation can influence each individual’s property rights, financial obligations, and what happens if the relationship ends. Unlike married couples, cohabitating partners are not automatically entitled to legal protections in the event of a separation.
This is where a cohabitation agreement comes in. If you’re living with your partner or considering moving in together, understanding how a cohabitation agreement works, what it is, and how it protects your rights, can be critically important. At Douglas Family Law Group, PLLC, our experienced divorce and family law attorneys routinely advise unmarried couples on how to proactively protect their interests.
What is a Cohabitation Agreement?
A cohabitation agreement is a legally binding contract between two people who live together in a long-term relationship, but are not legally married. This agreement applies particularly to romantic couples who have decided to move in long term together, but either are putting off marriage, or do not plan to marry at all. This agreement outlines the rights and responsibilities of each partner during the relationship, and just as importantly, if the relationship ends.
We often suggest that couples view cohabitation agreements as a “prenup” of sorts for unmarried couples. Much like a prenup, these agreements can address financial obligations, property ownership, shared debts, and even support arrangements after separation.
Why Would an Unmarried Couple Need a Legal Agreement?
One of the most commonly asked questions we get from couples exploring the possibility of a cohabitation agreement is why one would be needed in the first place. Contrary to popular belief, living together for a number of years, while unmarried, does not give you the same rights as a married couple. In New York, there is no such thing as a “common law marriage”! That means if your relationship ends, you may not have any legal claim to property or support (“palimony”), unless you’ve put an agreement together in writing.
Here are just a few real-life scenarios that can become highly complicated, and emotionally charged, without a cohabitation agreement:
- You’ve both contributed to purchasing a home or apartment, but only one name is on the deed;
- One partner has supported the other financially while they pursued school or stayed at home to take care of their children;
- You’ve acquired joint assets, such as cars, savings accounts, or even pets;
- You’ve incurred shared debts like joint credit cards or personal loans; or
- One partner wants to claim rights to items or accounts that the couple previously considered as “shared”, but there is no paper-trail as to the true ownership of these items.
So, How Can a Cohabitation Agreement Cover These Concerns?
A cohabitation agreement is essentially a legal contract at its core. This means that the terms are fully customizable and can be tailored to address the unique needs of each couple. Most commonly, they include property ownership and division, financial responsibilities, debt management, financial assistance, dispute resolution, health care and emergency decision, and any pets or other assets of significant emotional value to the couple.
Your agreement should outline who owns what, in relation to before, during, and after your relationship. If you’re buying a home together, the agreement can spell out how the title is held and how the proceeds of the home should be divided if you ultimately part ways with your spouse, or sell the property. A cohabitation agreement can even drill down to identify and clarify the ownership of the furniture, vehicles, and even investment accounts.
Similarly, the agreement should detail how household expenses will be shared. This usually includes rent or mortgage payments, utility payments, and other household day-to-day costs that will be shared. You cohabitation agreement can also cover how to handle joint bank accounts and shared credit cards in the event of a separation.
If one, or both, partners come into the relationship with debt, or if they incur debt during the relationship, the agreement can also clarify who is responsible for the repayment of the debt in the event of a separation. Often, we see couples that have student loan debt, or credit card debt from before the relationship. In these cases, identifying how this debt will be handled both during the relationship, but also in the event of a separation, can be an important role of a cohabitation agreement.
While not legally mandated for unmarried partners, some couples draft cohabitation agreements that include provisions for post-separation support, especially if one partner has sacrificed income or career advancement for the relationship. This functions in a very similar fashion to spousal maintenance provisions in a prenuptial agreement.
Your cohabitation agreement can also specify how important decisions will be made. You can choose in advance how disputes will be resolved if the relationship ends, such as through mediation or arbitration. You can also include language about health care proxies or decision-making authority if one partner becomes sick or incapacitated. Additionally, while obviously a worst-case scenario, it is important to include provisions regarding what would happen if one partner dies. What belongings will be returned to their family? What belongings will remain with their partner? A well-drafted cohabitation agreement will take these questions into consideration to ensure that you and your partner are legally protected – allowing you to focus on your relationship.
Pets are also a common inclusion in a couple’s cohabitation agreement, as ensuring that there is a legally protected plan for the future custody of your cat or your dog helps to reduce stress and anxiety over how they will be affected by a separation.
The Key Benefits of a Cohabitation Agreement
Even though couples are in love and optimistic about the future, a cohabitation agreement is always a good idea, as it offers important peace of mind and can clarify the expectations of each individual in a relationship.
Cohabitation agreements avoid costly and contentious disputes. Breakups are almost always emotionally difficult and can result in some high-conflict disputes. A cohabitation agreement provides a clear roadmap for resolving issues quickly and fairly, reducing the likelihood of litigation or feeling wronged by a rogue former partner.
Without a marriage certificate, you also don’t have the automatic rights to your partner’s income or assets. A cohabitation agreement allows you to set clear terms that protect your security and investments.
As we have frequently mentioned in our many discussions on prenuptial agreements, creating a cohabitation agreement similarly requires open, honest conversations about money, responsibilities, and future expectations. It is a healthy way to build trust and ensure that both parties are on the same page regarding their obligations and expectations.
Additionally, unlike a marriage, which can come with a wide range of legal implications, a cohabitation agreement allows couples to define their relationship on their own terms. You decide which rights you want to share, and which you want to keep separate.
When Should You Create a Cohabitation Agreement?
Ideally, a cohabitation agreement should be discussed before you move in together, or before making any major joint financial decision, such as buying property or opening shared accounts. However, it is never too late to protect your rights, even if you’ve already been living with your partner for some time. If your relationship status is evolving, and you find yourself sharing finances, owning property, or even making long-term plans with your partner, it is a good time to meet with an experienced family law attorney to consider how a cohabitation agreement can help you.
Are Cohabitation Agreements Enforceable?
In short, yes! If properly drafted, cohabitation agreements are valid, legal contracts that are enforceable under law. In order to qualify as a contract, both parties must enter the agreement voluntarily, and the terms must be fair, legal, and not against any public polic. It is important to have separate legal counsel review your agreement for each partner, as this will ensure that neither partner can claim that there was bias or one-sidedness in the drafting of the agreement.
As with any other legal document, working with an experienced family law attorney ensures the agreement is drafted correctly, reflects your intentions, and holds up in court, should you ever need it.
What Happens If You Don’t Have a Cohabitation Agreement?
If you have been living with a romantic partner and ultimately separate without a cohabitation agreement, the legal process can become murky and expensive. Courts typically do not divide property, nor provide support to unmarried partners without a contract or evidence of a financial partnership.
This means that you could lose access to property, bank accounts, or possessions you assumed were jointly owned. You might be unable to recover financial contributions you made to a home that’s not in your name. In some cases, you could even be left responsible for shared debt you didn’t even realize was solely in your name.
How an Attorney Can Help
Although the term “divorce attorney” implies marriage, family law attorneys are uniquely qualified to help with cohabitation agreements, as these agreements closely mirror prenuptial and postnuptial agreements. Our team at Douglas Family Law Group, PLLC are highly experienced in drafting and reviewing agreements for unmarried couples to ensure their rights are fully protected. We can help you understand what you need to include in your agreement, how you can draft a clear, legally sound document, review an agreement that your partner has proposed, and provide legal advice tailored to your unique relationship and goals.
We're Here For You
Living together without a marriage license may seem simple, but when relationships end, things can become complicated very quickly. A cohabitation agreement offers clarity, protection, and peace of mind to ensure that your rights and interests are safeguarded no matter what happens.
At Douglas Family Law Group, PLLC, our trusted divorce and family law attorneys are here to help you plan wisely for the future. Whether you’re moving in with your partner or have already been living together for years, we’re ready to guide you through the process with compassion, professionalism, and experience. Call us today at 914.615.9058 or submit our web form to have our team reach out to you to discuss next steps. At Douglas Family Law Group, PLLC, we fight for what’s most important to YOU during divorce and family law matters.
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