Using Cohabitation Agreements to Plan for the Future

Posted October 3, 2012 in Your Family & The Law by


Fewer Americans are getting married than ever before, but that doesn’t mean couples aren’t cohabitating. If you’re thinking of shacking up or creating a domestic partnership, experts say it’s a good idea to consider entering into a cohabitation agreement.


Marriage Down, Cohab Up

Over the last 50 years, marriage rates have steadily declined from a high in 1960 of 72 percent of adults in the United States, to a record low in 2010 of 51 percent, according to a December 2011 Pew Research Center analysis of U.S. Census data.

On the other hand, a July 2011 Pew report found that the number of 30- to 44-year-olds living as unmarried couples has more than doubled in the last 15 years.

Living together doesn’t hold the stigma it once did — but it can be just as complicated as marriage when it comes to what do with the stuff you accumulate as a couple.

Having a cohabitation agreement fills in the gaps where traditional laws dealing with how to split assets if the couple splits would apply had they married. Couples who live together and share leases or mortgages, as well as pets and even children, are drawn to these agreements, and some even use such contracts to govern typical relationship issues “like who gets to pick the vacation destinations and how often you have sex,” according to a recent New York Observer report.

If you’re the risk-averse type, here are some things to consider if you and your mate are ready to sign on the dotted line.


Think Forward

Daniel E. Clement

“The key to any of these agreements is to be forward-looking,” recommends Daniel E. Clement, a New York lawyer whose practice is focused exclusively on family law. The first thing to account for is location.

“The relationship, whether it be same-sex marriage or some other relation, may be recognized in the jurisdiction where the parties presently reside, but may not be recognized in another jurisdiction where the parties may reside at some point in the future,” he says.

“For this reason, the issues of how property will be split and distributed should be specifically addressed,” Clement says. “The agreement should detail explicitly what laws should be applied, and how property will be valued and split.”

And then there’s the even-further-out future: while it may be hard to imagine losing your mate, Clement recommends thinking ahead about inheritance rights and writing your wishes specifically into the cohabitation agreement.


Know Your State

This especially applies in the case of gay marriage, which is allowed in several states including New York. “If the parties move to jurisdiction that does not recognize the same-sex relationship, when the first spouse dies, the survivor could be a risk as not being recognized as the surviving spouse,” Clement points out.

Gay couples are actually reversing the trend in jurisdictions where they can get married. “New York allows same-sex marriage, so I have not seen an increase in domestic partnerships or cohabitation agreements,” he notes. 

The key, again, is location: just like gay marriage, some states recognize domestic partnerships and others don’t, which can impact availability of health insurance, among other benefits.

 If you’re considering cohabiting and want to create an agreement about it, contact a family lawyer in your state on

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