Why You Should Have a Cohabitation Agreement

By Jared Laskin

..........Most unmarried couples who live together don't have a written agreement governing their rights and obligations, but virtually all of them should.

..........As you set up a household together, each of you has certain expectations regarding your finances and your obligations to each other. You may expect that each of you will retain your own separate property, and neither of you will be obligated to support the other. Your partner may have the opposite expectation. If you and your partner break up, these conflicting expectations can lead to tremendous distress and unhappiness.

..........For example, if you are much wealthier than your partner, and the relationship breaks up, you are a target for a lawsuit. Your partner may sue you for "palimony," claiming that you promised that you would support him or her for life, and/or that all property you acquired during the relationship would belong to both of you. If you have no written agreement to the contrary, and your partner's claims are believed, you could be obligated to divide your property with and/or pay support to your partner--even if a desire to avoid these obligations was the very reason you didn't marry your partner in the first place.

..........Conversely, you may have quit your job to make a home for your partner, who in return promised that you would always be "taken care of," only to find when you break up that all of the assets you acquired "together" are in your partner's name, and your partner is denying that he or she ever made any promises to you.

..........In California and certain other States, the courts enforce most agreements between unmarried cohabitants regarding their property. These agreements fall into three categories: implied, oral , and written.

..........Implied Agreements: Implied agreements are unspoken "understandings" between two people which can be implied from their conduct. For example, if a man provides financial support for his live-in companion, a jury may someday find that the two had an "understanding" that he would always support her -- even if the relationship broke up. You may be surprised to learn that a court can force you to live up to such an "understanding." If you don't want a jury guessing after the fact what your "understanding" was, you should protect yourself now.

..........Oral Agreements: An oral agreement is an agreement made through spoken words. However, as a wise man once said, "an oral agreement ain't worth the paper it's written on." Memories fade and change -- but written documents don't. After a relationship breaks up, people often lie -- but written documents don't.

..........Written Agreements: While they are not always perfect, written agreements signed by both parties are far superior to oral and implied agreements in terms of providing the parties with some measure of certainty. Having a written document helps insure that you -- and not a future jury -- determine exactly what the terms of your agreement are. They also provide you and your partner with an opportunity to communicate and clarify your expectations of each other.

..........To avoid misunderstandings, you and your partner should discuss your expectations regarding financial matters before you move in together. When you do, you may find out that the two of you have very different understandings as to what your "deal" really is! Once you have talked through the issues and reached a mutual understanding, you should put that agreement in writing. Even a written agreement you draft yourself is probably better than nothing. However, the ideal arrangement, if you can afford it, is for both you and your partner to be advised by separate attorneys, who can negotiate and draft an agreement that will be enforceable in your jurisdiction. An attorney is more likely to spot all of the issues that need to be covered by the agreement, and can avoid the pitfalls that may result in the agreement becoming unenforceable.

..........Although it may seem surprising at first, it is to your benefit for your partner to be represented by an attorney. This will to help avoid later claims of unfairness or duress which could cast doubt on the enforceability of the agreement. Preferably, you and your partner should both hire attorneys who are familiar with the laws of your State relating to non-marital cohabitation. For assistance in finding an attorney, see Attorney Listings and "Finding and Working with Lawyers" in the Resources section.

..........The information on this Web page is based on California law.  It is not legal advice and cannot replace the advice of competent legal counsel licensed in your State based on the specific facts and circumstances of your case. See Disclaimer.