Cohabitation Agreements

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This past Sunday, the Los Angeles Times reported that a new study from the Centers for Disease Control and Prevention, based on the CDC’s National Survey of Family Growth, found that almost 50% of unmarried women are living with a significant other.  Couples are not only cohabitating more often than in the past; they’re doing it much longer.  This comes on the heels of a report released last month which found that Americans were waiting longer than ever to get married for the first time, with the average age of 26.5 years for first-time brides and 28.7 years for bridegrooms.

When people cohabitate, what is their legal relationship to each other, if any?  This is an important question to be considered before a couple makes the decision to share their lives without the formality of a marriage.  This consideration is also important for same-sex couples who decide to cohabitate without a formal marriage (where such is allowed) or a Registered Domestic Partnership.

The Law

Common law marriage, whereby a valid marriage is created by operation of law without satisfying solemnization and other legal requirements of formal marriage, was abolished in California in 1895.  Despite the fact there is no common law marriage in California, this does not mean that quasi-marital rights (called palimony or Marvin actions) cannot arise in a relationship where the parties lack a legal marriage or Registered Domestic Partnership.  In order for this to occur, the equivalent of a contractual relationship between the parties must exist, one that usually does not involve a written contract but instead is implied or based on oral statements and therefore is typically very difficult to prove.  If such a quasi-marital relationship exists, there is no requisite time period associated with the length of the relationship to prove a legal claim regarding the relationship.

Take Control and Plan

A legally binding relationship can thus occur as a result of cohabitation. The problem is, usually people have no idea whether these legal requirements have been met until the relationship ends.  This means expectations of each person may be different throughout the relationship, as well as at its conclusion.  Imagine believing you have the equivalent of a marriage and that the property acquired during the relationship will be shared equally, only to learn you have no legal interest in the property.  Similarly, you may believe all property purchased during the relationship with your earnings was your separate property, only to learn that an implied contract was created and now it must be shared.  These unexpected and unplanned results can be resolved by entering into a cohabitation agreement which will set forth each person’s rights and responsibilities during their relationship.

The process for creating a cohabitation agreement is the same as that for a prenuptial agreement.  My previous blog post about the Mediated Premarital Agreement fully explains the options.

Conclusion

As more and more people cohabitate, either before marriage or the before entry of a Registered Domestic Partnership; or without every getting married (think of the decades-long relationship of Goldie Hawn and Kurt Russell), financial issues often need to be sorted out when the relationship ends.  Therefore, living together should not be taken lightly and should be viewed as a legal relationship worth the same careful consideration as a marriage.

Topics:  Cohabitation Agreements, Common Law Marriage, Community Property

Published In: General Business Updates, Family Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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