The Importance of Cohabitation Agreements

This article by Megan Smith in the National Law Review may be of interest to my readers.

The Importance of Cohabitation Agreements

In today’s society, many couples choose to live together rather than get married. This growing trend has become more common in recent years than ever before. There are a variety of possible reasons why couples choose to live together rather than get married. One factor that is likely considered is the complex legal proceedings that will occur if the couple was to get divorced. Couples that cohabitate would rather make it simple and just be able to move out rather than go through a formal divorce.

cohabitation-However, while cohabitating couples may think they are simplifying their lives, legally, it is important to note that they are given none of the legal protections of married couples. This is especially true in New Jersey, as common law marriages are not recognized, so cohabitating couples are actually doing themselves a disservice by not seeking out the legal protection offered in marriage. Some of the rights that unmarried but cohabitating couples lose out on include the protections provided by divorce laws, the right to make medical decisions for their partner, inheritance laws, survivor’s benefits as well as many others.

Cohabitating couples who decide to part often encounter issues and conflicts regarding the title and division of property purchased together, joint bank accounts they may have established, loans taken out together, gifts given between the parties and child custody and child support payments for children that were born of the relationship.

There is a simple solution that cohabitating couples can pursue to create legal rights for themselves: a cohabitation agreement. Similar to prenuptial agreements made prior to the marriage and settlement agreements reached during a divorce, a cohabitation agreement is a written legal document reached between a couple who have chosen to live together but are not legally married.

This sort of agreement provides a way for a currently cohabitating couple to protect themselves from future unnecessary costs and litigation should their cohabitation end. Furthermore, it allows for the parties to clearly identify and safeguard their individual property, as well as indicate certain other rights they wish to maintain if they are to separate.

A cohabitation agreement creates a contractual obligation between the two parties. This then creates legal rights that might not be otherwise automatically recognized by the state.

There are a variety of topics that a cohabitation agreement can cover, such as:

  • The possibility of palimony being paid should the couple break up
  • The division of real property
  • The designation of jointly owned property in the event that one partner may die
  • Medical decisions
  • Individual contribution to household bills
  • Custody and child support
  • Inheritance rights of one partner if the other partner should die
  • The designation of one partner on the other partner’s insurance policy

A cohabitation agreement is a very specific and personal document, and can be used to address a wide variety of topics beyond those just mentioned. It is highly recommended that any couple currently cohabitating or thinking about cohabitation consult with an attorney to draft a cohabitation agreement.

Source: The Importance of Cohabitation Agreements (National Law Review, August 25, 2015).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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