Is Your Cohabitation Agreement Valid?

By entering into a “cohabitation agreement” -- also referred to as a nonmarital agreement or living together contract -- an unmarried couple can provide rights to one another that are similar to rights granted to married couples. Generally, such contracts are limited to financial and property-related considerations; and while custody or visitation may be addressed in such documents, the courts are always free to rule on such issues as they see fit.

Maybe you've signed a similar agreement with your live-in partner. But is your cohabitation agreement valid? The following information will help you get up to speed.

Marvin v. Marvin and Cohabitation Agreements

The validity of such agreements was the subject of a well-publicized 1976 case in the California Supreme Court (Marvin v. Marvin). In that case, the court held that an express agreement between a couple living together outside wedlock to share income in consideration of (or exchange for) companionship could be legally enforceable. However, Ms. Marvin wasn’t awarded "palimony" because the court found that Mr. Marvin hadn’t agreed to share his income with her.

So while the case didn't work out in Ms. Marvin's favor, it set an important precedent regarding the validity of cohabitation agreements.

'Meretricious' Relationships and Oral Agreements

When an agreement expressly includes consideration of sexual services provided by one of the parties, a court is more likely to find the contract unenforceable. For example, if one partner agrees to share their income in return for the other partner's love and companionship, a court may find that the contract implicates “meretricious ” (apparently attractive, but actually of little value or relating to a prostitute) sexual activity. The court may refuse to enforce the contract.

Proving an oral agreement or an implied contract between unmarried cohabitants is also difficult, and several courts have refused to recognize such an agreement due to lack of proof.

Cohabitation Agreement Requirements

The majority of states now recognizes these cohabitation agreements, though many require that the agreement be in writing and signed by the parties. The legal requirements for valid cohabitation agreements tend to parallel the requirements of other contracts, because they’re essentially just another type of contract. Only a small number of recent cases have held that contracts between unmarried cohabitants are unenforceable.

A cohabitation agreement is more flexible and less regulated than a marital agreement. Couples typically include the following key points in their contracts:

  • Distribution of property in case of death or breakup;
  • Financial support during the relationship or after;
  • Payment of debts from before and during the relationship;
  • Division of the principal residence upon death of one partners or breakup;
  • Creation of a joint tenants with rights of survivorship, allowing the other partner to own the shared home if the other dies or adding both partners' names to the deed;
  • Decide on support, custody, or visitation rights for minor children, although the court can disagree with this and decide differently based on what’s in the best interests of the children;
  • Determination of health care insurance responsibility; and
  • Creation of advanced health care directives or health power of attorneys to allow both partners to make decisions about the other’s health care in case of incapacity

Cohabitation Agreements vs. Prenuptial Agreements

Premarital and cohabitation agreements are apples and oranges. If you marry your partner when you previously had a cohabitation agreement, it will not be in effect after the marriage. In contrast, the whole purpose of the prenup is to determine what happens after marriage, in case the couple divorces. All states enforce at least some prenups and almost all states recognize cohabitation agreements.

Is Your Living Together Contract Valid? Talk to an Attorney

With the variety of living arrangements today, it's even more important to make sure that you and your partner have a very clear understanding of your rights and obligations to each other. Living together agreements can provide this clarity and can also help you to avoid tensions down the road. However, to make sure that the agreements are done properly, it's important to speak with an experienced family law attorney familiar with these types of contracts.

Next Steps

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