As states move slowly to adopt same-sex marriage, couples are turning to other legal mechanisms to govern their relationships. One such tool is the cohabitation agreement or “living together” contract — or more commonly known in the LGBT community as the pre-prenup. A cohabitation agreement is a legal agreement reached between an opposite- or same-sex couple who have chosen to live together (cohabitate) but are not married. Similar to a pre-nup, it establishes each party’s legal rights and responsibilities in the event of a break-up or death.
For much of American history, courts would not enforce cohabitation agreements because the law saw it as an assault on marriage: Judges did not want to encourage such behavior by allowing the parties the protection of the law. However, as the norms of society changed, so did the practice of cohabitation. For example, according to the U.S. Census Bureau, only 523,000 heterosexual couples were cohabitating unmarried in 1970. By 1995, the number of cohabitating couples grew to 3,668,000. Most courts now recognize cohabitation agreements by relying on contract law as opposed to family law. Contract law is concerned with keeping promises between contracting parties and tries to uphold the wishes of parties to a contract, so long as the parties intended to be bound and are contracting for a legal purpose. In contrast, family law is traditionally concerned with how the state maintains the idea of the nuclear family and its objectives concern how persons should marry, divorce and care for children. Since only a few jurisdictions recognize same-sex marriage, same-sex couples should fashion their agreements in terms of an ordinary exchange of contractual promises and avoid the use of family-law terms like alimony, support, guardianship of children, etc., to increase the likelihood that their cohabitation agreement is enforced.
In 1976, the California Supreme Court in “Marvin v. Marvin” first recognized the ability of unmarried cohabitants to enter into both oral and written agreements, so long as they were not premised on sexual services. Since “Marvin,” states have moved toward the acceptance of cohabitation agreements, and allowed cohabitants to contract concerning exchange of property and services, so long as the contract is not premised on sexual relations. However, state to state, courts recognize the scope of these contractual rights quite differently. Some states only validate express written agreements. Other states are willing to entertain oral agreements, or even sometimes an implied agreement. Still, some states don’t recognize cohabitation agreements at all, based on the notion that cohabitation without marriage is immoral.
In Pennsylvania and New Jersey, the necessity for a cohabitation agreement prior to unmarried cohabitation is great, because courts in these states have demonstrated a willingness to use various theories to grant relief to the aggrieved party upon termination of a period of unmarried cohabitation. An unmarried cohabitant in Pennsylvania and New Jersey may establish property rights in the assets of his/her partner in multiple ways, unless a cohabitation agreement exists to establish terms of property division.
In practice, cohabitation agreements can serve a variety of purposes for same-sex partners. Among other things, a cohabitation agreement may be utilized to outline each party’s responsibilities with respect to financial expenses associated with living together or specify each party’s responsibility for his or her individual debt. A cohabitation agreement may be entered into as a precaution to protect each party from the cost and stress associated with litigation in the event the partners decide that they no longer wish to live together in the future. Cohabitation agreements also permit parties to make arrangements regarding specific assets acquired before deciding to live together and/or assets that they anticipate they will acquire during the period of their cohabitation. Perhaps most importantly, cohabitation agreements allow parties to set forth their agreements regarding child-related and parenting issues. While these agreements are legally binding on both parties regarding financial issues, issues involving custody of children and their welfare are always subject to review by the court system. In some cases, a written agreement regarding custody may be reviewed or changed by the courts if circumstances or the needs of the minor children have changed.
To summarize, cohabitation agreements should be drafted with care and both parties should have independent counsel to represent their interests.
Tips to writing a cohabitation agreement: 1. Talk the issues out at length and come to joint understandings. 2. Regardless of how comprehensive, make sure to cover the basics of property and money. 3. If necessary, have different contracts covering property, support, housing and joint costs — don’t try to cover everything in one contract. 4. A cohabitation agreement is personal but exclude personal arrangements such as house chores and cooking. 5. Don’t mention sexual services. 6. Each party should obtain independent legal counsel before executing the agreement, especially if there is a large sum of money and property involved or if bargaining power is not equal. 7. Agree in advance to mediation as the method of dispute resolution. 8. Modifications of a cohabitation agreement should always be in writing and drafted by an attorney (especially if the modifications are significant). 9. The cohabitation agreement may need to be notarized depending on what state the parties reside and whether the agreement contemplates real estate. 10. Don’t prepare a cohabitation agreement if one or both parties are married to someone else.
Angela Giampolo, principal of Giampolo Law Group with offices in Pennsylvania and New Jersey, specializes in LGBT, business and real-estate law and civil rights. Send Angela your legal questions at [email protected].