Cohabitation Agreements Taking Place of Prenups for Unwed

Posted April 13, 2012 in Your Family & The Law by

Living together before tying the knot is not the scandalous prospect it was considered to be in more conservative times, and adults in the U.S. are now putting off marriage at unprecedented rates. With the stigma of “shacking up” diminished, more couples are finding reasons to move in together before marriage, prompting some to lay down a few ground rules with cohabitation agreements.

Similar to prenuptial agreements, cohabitation agreements are premarital contracts that are used to specify ownership of assets, define living arrangements and establish a variety of other legally-binding terms. For two unmarried partners who split up after several years of living together and making major joint purchases, a cohabitation agreement can make it fairer, cheaper and less complicated for them to separate their lives.


No Rush to the Altar

According to a poll conducted last year by the American Academy of Matrimonial Lawyers, 39% of divorce attorneys noted an increase in the demand for cohabitation agreements over the last five years. Nearly half observed an overall increase in legal battles between cohabiting couples during the same period, suggesting a growing need for partners to anticipate their individual legal needs.

Cuomo Shore

Shari-Lynn Cuomo Shore

“Certainly within the last five years we’ve seen a noticeable increase in cohabitation agreements,” said Shari-Lynn Cuomo Shore, a family law attorney with Wolf & Shore, LLC in Hamden, Connecticut. “There’s been a significant increase in prenuptial agreements as well.”

This trend makes sense in light of a recent Pew Research study that says Americans are getting married later than ever before. As of 2010, the median age at first marriage stands at 26.5 years for women and 28.7 years for men, both all-time highs. While priorities like higher education and career advancement compel more couples to delay marriage into their late 20s and beyond, fewer couples are willing to wait that long to enjoy the intimacy of shared living space or the practicality of shared rent and utility bills.


What Are Cohabitation Agreements?

Though cohabitation agreements are growing in popularity, they’re not as well-known as prenuptial agreements, leading to some misconceptions about what they are and what they can do.

“Let me dispel a myth here: a cohabitation agreement is really nothing more than a contract,” said Steven Bruneman, a family law attorney with Bruneman Law in Dallas. “It doesn’t really exist as a boilerplate legal document. It can establish any terms that would be enforceable in any other type of contract.”

Cohabitation agreements are primarily used to establish the division of assets purchased as a couple, such as real estate, automobiles and home furnishings. They are also commonly used to establish one partner’s debts as separate from the other partner’s.

Steve Bruneman

Steve Bruneman

“It defines your property rights as a couple,” Bruneman said. “When you buy a house together, but you can’t get a divorce because you never got married, it’s the cohabitation agreement that gives you both asset protection.”

Cohabitation agreements have comparatively limited power when it comes to parenting and child custody, however. While they can be used to outline some conditional child support obligations, they have no real clout in family court, where the best interests of a child will always trump a simple contract.

“In general, a cohabitation agreement cannot define rights with regard to children,” said Bruneman.

The potential for legal disputes over children of cohabiting couples is also on the rise. A recent study by the U.S. Centers for Disease Control and Prevention states that 22% of U.S. births from 2006 to 2010 were to unmarried, cohabiting couples, up 12% from 2002. As has previously reported, other recent studies show that children of cohabiting couples face more daunting challenges than their counterparts with married parents, including increased odds of their parents separating and a greater risk of abuse and neglect.


Nipping Marriage in the Bud

In certain states, a couple can even use a cohabitation agreement to avoid marriage altogether. Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah and Washington, D.C. all have common-law marriage statutes, most of which list cohabitation as a requirement.

Under some circumstances, couples in these states may become legally married without even knowing it. For example, adding your girlfriend or boyfriend to your health insurance plan as a domestic partner may be viewed by your state as an intent to be married, which is another typical condition of common-law marriage. But a cohabitation agreement can make it clear that marriage isn’t what you had in mind.

“In Texas, you may want a cohabitation agreement that says, ‘we are not married, we do not intend to be married and we will not be considered married unless we obtain a marriage license,’” said Bruneman.

Generally, though, cohabitation agreements are used by cautious couples to make sure their intertwined lives can be more easily unraveled if the need arises.

“When you’re married and you split up, you have divorce court,” said Cuomo Shore. “But when you’re just dating, there is no divorce court, so this is how you protect yourself.”

If you think a cohabitation agreement is right for you and your live-in partner, consulting a family law attorney is a great place to begin.


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