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A Guide to Cohabitation Agreements

Fri 15th Mar, 2024 Family Law

Many couples choose to live together (or “cohabitate”) before they get married — that is, if they get married at all. While these arrangements allow for more flexibility than marriage, they also provide fewer protections in the event of divorce, as unmarried partners may not seek alimony or obtain 50/50 asset division under California community property laws. However, unmarried partners are not always completely without recourse in the event of a breakup. Our Stockton family lawyers can discuss your options with you, including cohabitation agreements. 

What Is a Cohabitation Agreement? 

A cohabitation agreement is a contract between two cohabitating partners that outlines what happens when the relationship ends, as well as how certain matters will be handled during the relationship. While they are commonly used in romantic relationships, long-term roommates have also been known to use them. Not every unmarried couple necessarily needs a cohabitation agreement, but they can be particularly advantageous in some scenarios, such as in high-asset relationships and where the unmarried parties plan to purchase real estate together. 

How Cohabitation Agreements Differ From Pre-Nuptial Agreements

Cohabitation agreements are very similar to prenuptial agreements. In fact, they are commonly referred to as prenuptial agreements for unmarried couples. But while prenuptial agreements survive marriage (i.e., they continue to be in effect after the couple marries), cohabitation agreements do not. Cohabitation agreements are also less legally regulated than prenuptial agreements. For example, California law requires the parties to a prenuptial agreement to be represented by independent counsel, while there is no such provision for cohabitation agreements.  

Common Provisions in Cohabitation Agreements 

The parties to cohabitation agreements have a great degree of flexibility when drafting their terms. While every agreement is different, some of the most common provisions in cohabitation agreements include: 

  • Identifications of “separate” and “community” property 
  • How income and expenses will be shared by the parties 
  • What happens to the dwelling in the event of a breakup
  • Responsibilities for paying bills and housework 
  • How assets and debts will be distributed in the event of a breakup
  • Whether either party will be entitled to payments from the other party after a breakup
  • How disputes are to be resolved 
  • Whether and how the couple will have children 
  • How to divide childcare obligations
  • Care and custody of pets 
  • What happens if one party becomes disabled and unable to work 

Readers should note that while cohabitation agreements are generally enforceable, California courts typically refuse to enforce them if they find that they are “meretricious” (i.e., based on the provision of sexual favors by one party in exchange for material support from the other party). Provisions concerning child custody, child support, and visitation are also typically unenforceable, as those determinations are made by the court in the best interest of the child. 

Draft a Cohabitation That Works for You With Help From a Stockton Family Lawyer

If you’re considering a cohabitation agreement, an experienced attorney can help you draft a customized contract that takes your unique circumstances into account. For more information, please contact a Stockton family lawyer at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.

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