Cohabitation (living together) is increasingly common amongst unmarried couples. Though unmarried, cohabitants may live as married, have a significant emotional attachment to the other party, and may find a breakup to be extremely difficult. Aside from the emotional challenges, putting one’s life back together following such a breakup may be complicated due to property issues not determined in advance.
Unmarried parties in an intimate relationship (often called unmarried cohabitation), even one that exists for a long time or involves a shared residence, do not enjoy the same rights enjoyed by married persons. More specifically, property division and maintenance may not be granted by a court at the end of a cohabiting relationship as they may at the end of a divorce. The property rights for unmarried cohabitants will depend upon who paid for the property, private agreements made between them, and the way the cohabitants handled the property during the relationship (e.g., through titling).
Such a private agreement, often called a cohabitation agreement or sometimes a domestic partner agreement, may be entered into by two people residing together who are unmarried. It can resolve major concerns in advance and minimize the need to involve the court system and incur that heartache and expense.
Sometimes, those in a serious relationship may choose to not be married or for a variety of reasons cannot be. However, property – real estate, vehicles, furniture, or other items – may be shared by both and there may be an understanding or shared intention as to who would own the property or how it would be divided should the relationship end.
Property acquired by both parties may be divided in accordance with the terms of an express agreement. See Murphy v. Bowen, 756 S.W.2d 149 (Ky. Ct. App. 1988). A cohabitation agreement is such an express agreement that can provide financial security that otherwise would not exist. It may be useful if one party:
- Buys property for the use of both parties during the relationship: apartment, appliances, car, etc.
- Handles the shared living expenses for both during the relationship: food, utilities, housing, etc.
- Works or spends money to improve property whose title is held by the other party
- Serves as a homemaker or raises the parties’ child(ren), perhaps after giving up a career, while the other makes an income
- Provides money to the other with the expectation that it will be repaid if the relationship abruptly ends
- Obtains a loan, line of credit, etc. for the benefit of both but is the sole person listed as debtor in the creditor’s records
- Gets a pet that both parties love and take care of during the relationship and would not want to give up should the parties go their separate ways
Frequently Asked Questions
- Must a cohabitation agreement be entered into before moving in with my partner?
- While this may be ideal, a cohabitation agreement may be entered into either before moving in or after living together for some time.
- I don’t feel comfortable entering into a cohabitation agreement because it suggests we are anticipating the relationship will end? Why are cohabitation agreements so useful?
- It’s common for one or both parties to be reluctant to sign a contract, especially one which seeks to bind a significant other along financial matters. However, like prenups, cohabitation agreements are a responsible way of preparing should circumstances do not go as planned. By entering into a cohabitation agreement, both spouses demonstrate that they are prepared to take care of the other at a time before feelings change or memories fade.
- How is titled property divided when a couple ends their relationship?
- If the parties are married, titled property – land, residences, automobiles, etc. – follows the default property division rules if there is no premarital or postmarital agreement. This will generally result in a split of property acquired during the marriage, because this will be presumed to be marital property, regardless of how title is held. KRS 403.190(3).If the parties are not married, titled property will go to the party listed on the title document – deed, vehicle registration, etc. – by default. Accordingly, the party not listed on the title document may want to secure certain rights to such property via a cohabitation agreement.
- Can same sex couples enter into a cohabitation agreement?
- Yes, a cohabitation agreement would be enforced as a private contract between the parties. The fact that Kentucky does not recognize same sex marriage would have no impact on enforceability.
- Can a cohabitation agreement allow unmarried partners to gain benefits usually reserved for married persons?
- No. Benefits reserved for married individuals (e.g., health insurance or housing rights) cannot be obtained merely by having a cohabitation agreement while the parties remain unmarried.
- If a party sought enforcement of a cohabitation agreement, would this be done in a family court or a regular civil court?
- Because by definition the agreement pertains to a non-marital relationship, enforcement would be brought in a regular civil court as a breach of contract action.
- Does the cohabitation agreement need to be in writing?
- Technically no, but oral agreements are more difficult to prove, or at least subject to disputes about what was said and done. An express agreement is the best assurance that the parties intend domestic services provided for the other to be compensated or to serve as consideration allowing property to be shared as they would had the relationship been a marriage. The general limitations on contract enforceability apply, including non-enforcement for fraud, misrepresentation, unconscionability, or unjust enrichment.
- Can a cohabitation agreement be modified after it is created?
- This largely depends on the document itself. A well-drafted cohabitation agreement considers whether and how certain provisions may be modified. Usually it can only be modified by a separate written agreement signed by both parties.
- Can a cohabitation agreement be revoked after it is created?
- Yes. Like any other written contract, a prenup may be revoked if both parties abandon and/or destroy the written document, or jointly execute a written revocation.
Legal Services Offered and Cost
Legal fees: $400 flat fee for drafting agreement and up to one hour of discussion time with an attorney in person, on the phone, or through the internet
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