Cohabitation Agreement: An Overview
Cohabitation agreements in essence are contracts between unmarried cohabitating parties. Very often, these contracts are put into place to set forth expectations regarding each party’s contributions and responsibilities in the relationship, or as a means for at least one party to protect their separate property from potential claims of a former partner in the event of the demise of a cohabitant. Cohabitation agreements can address both financial and personal matters.
The Massachusetts Probate and Family Court has jurisdiction over issues related to cohabitants, but since such relationships are not considered part of the Commonwealth’s establishment of marriage, the agreements are controlled by the principles of contract interpretation. Courts can only exercise jurisdiction over these agreements once they have determined that a valid contract, by either express or implied terms, has been entered.
Massachusetts is one of a handful of states which allow cohabitants in a relationship to enter into such agreements. The Commonwealth does not recognize common law marriage, wherein partners may live together for a period of time and then become legally married through the mere passage of time. Massachusetts does however recognize financially interdependent relationships involving cohabitants as relationships meriting protection from exploitation, according to Massachusetts General Laws chapter 209A, the Anti-Fraud Law, G.L. chapter 266, the Coercive Control and Stalking Law, G.L. chapter 258E, the Interference with Custody Law, G.L. chapter 207, and other statutes in the Family Law Code, G.L. chapter 208.
Marriage in the Commonwealth requires a license and encounter a waiting period (currently no less than three days, no more than 30 days). There is no waiting period for cohabitant relationships. In other states, waiting periods may differ.
Whereas the Commonwealth does not formally recognize common law marriage , and the contractual relationship between parties has the look of a common law marriage relationship, courts will attempt to enforce a contract where the parties exchange consideration ("bargain for benefit") in exchange for performance of promises made in the agreement. Where there is an exchange of consideration, courts are better able to assess and award damages if one of the parties brings a court action against the other. Cohabitation agreements have special protections afforded to them in the Commonwealth. Some courts will apply the same legal principles afforded married people to unmarried cohabitating partners who enter into a written contract.
An engaged couple has the same rights and responsibilities under the domestic relations laws as those who are married. Cohabitation agreements can designate one party as the legal decision maker of the other in matters such as health care decisions, so long as proper informed consent is obtained. Cohabitation agreements can also designate a party as the recipient of spousal benefits upon death.
Cohabitation agreements can take almost any form, but for enforcement purposes, they should be in writing. Notarization and/or record keeping is also prudent. Cohabitation agreements typically afford protection for a party’s rights of maintenance, division of assets or debts, division of home equity, distribution of property in the event of estate death or incapacity, and preservation of estate tax benefits. Cohabitation agreements can also confer rights of the parties’ children.
Cohabitation agreement are often the most viable way for unmarried cohabitant partners to memorialize and plan for their intentions regarding their separate property and their relationships with each other. Cohabitation agreements can address relationship issues and concerns ranging from household duties and financial contributions to liability for fraud and misappropriation of funds to parental responsibilities.
Importance of Cohabitation Agreements in Massachusetts
Cohabitation agreements are increasing in popularity across the United States. However, Massachusetts lacks a statewide statute specifically outlining the rights and responsibilities of unmarried cohabitating couples. A cohabitation agreement does provide parties with a way to control their rights and obligations toward one another and provides support for statutory claims that, if brought, could be denied by a Massachusetts Court. For example, if you have a cohabitation agreement and you own a house, a Massachusetts court is probably not going to grant your partner alimony before the house is divided in the divorce proceedings.
There is no definitive body of law governing cohabitation agreements; the Massachusetts Courts still rely on the principles applicable to regular contracts. As a result, the terms of each cohabitation agreement will likely differ from the terms set in other agreements. Cohabitation agreements may address topics such as: Making a cohabitation agreement comprehensive and thorough will save parties time and money in the long run. Cohabitation agreements allow unmarried couples in Massachusetts to gain a sense of security that can be lacking under Massachusetts law. Therefore, while there is no single, unified law governing cohabitation agreements, having one in place in Massachusetts can help clarify rights and obligations.
Key Provisions of a Cohabitation Agreement
A cohabitation agreement is a contract between two unmarried people – typically a man and a woman – that outlines how the relationship will operate. Cohabitation agreements can protect a person’s rights in the event of a break-up or death, but they can also contain provisions that help foster a mutually beneficial relationship. Some of the key components to a cohesive and comprehensive cohabitation agreement include: 1. Legal Considerations: Just like any other contract, both parties have to agree on the terms. Many times this is facilitated by open dialogue at the outset of the agreement. It can also be beneficial to have an attorney on hand to ensure that all elements are communicated clearly and understood by each party engaged in the relationship. 2. Assets and Debts: The assets and debts of a cohabitating couple can be delineated in a contract, including what they are and how they will be divided in the event of a split. This type of statement can nip many issues in the bud prior to litigation. 3. Medical Decisions and Emergency Plans: Whether together or apart, establishing each partner’s preferences for health care should they become unable to care for themselves is a wise move for any cohabitating couple. This can also be referred to as an "Advanced Medical Directive." 4. Splitting Expenses: Cohabitating couples may want to outline their agreement on who will pay what bills in the home so that no one feels burdened under the costs. This can encompass a wide range of expenses including utilities, food, rent/mortgage, repairs and more. 5. Child Custody: If the couple has children together, they will want to specify legal custody and parenting plans, as well as child support if they choose to do so. Custody, however, can only be settled in court; therefore, it would be wise to include language that specifies the agreement is not enforceable in such manners of law. 6. Separation Agreements: Particularly if you will be co-mingling your lives in every way possible, a comprehensive separation agreement is important. This can specify how property will be divided, child custody and support, and can be part of a larger divorce agreement. 7. Pets: Many couples consider their pets to be part of the family, so it is important to understand the important role they play in the household and address how custody and expenses will be handled in the event of a separation. 8. Inheritance: Cohabiting couples do not have the same legal protections as married couples for the distribution of their assets after death. A cohabitation agreement can address how assets are to be distributed in the event that someone should die unexpectedly. 9. Alimony: Contracts can also address "palimony." This type of spousal support exists for unmarried couples and in the event that one partner gives up some of their income or savings, rent, personal employment, etc., for the improved benefit or for the contribution to the well-being of the other party.
How to Create a Cohabitation Agreement
In this section of the Cohabitation Agreement FAQ’s, we will give you a step by step guide to drafting a Cohabitation Agreement in Massachusetts. We will also give advice on some additional things you may want to consider when drafting your agreement and how to make sure that your Cohabitation Agreement is legally binding.
Step #1:
The first step in drafting a Cohabitation Agreement is to outline the things that you want to have covered in the document. Things to consider are property acquired while living together (i.e. a car, furniture, bank accounts), how you will pay for day to day expenses (i.e. how much each partner will contribute to rent, phone bills, etc., and the date at which you will actually pay it), and if either partner has children how the children will be taken care of financially. Other considerations you may or may not want to address are dating, work obligations, pet care, and how you will divide your belongings if you ever stop living together. This list is not exhaustive, however, and you may want to include additional provisions that I have not listed.
Step #2:
Once you have agreed together on the terms you want included in the Cohabitation Agreement, it is important that you put them in writing. If both parties are comfortable, you could include all of the provisions you drafted and sign the document with two witnesses present. A notary public will usually sign the document at this time in order to signify that the signatures are legitimate and were made willingly. However, as is often the case, people do not always feel comfortable including all of the specifics in writing and simply wish for an outline to help guide them through their cohabiting relationship. If this is the case, it is important that you sign a document that states you both understand that the outline is not a legally binding document and that you both have the right to alter the document in any way you choose. This allows you the flexibility to change the terms of the agreement whenever you feel like it or when your circumstances change.
Step #3:
Make sure you both keep a copy of the signed document so that you have it for any future reference. Keep in mind that either of you can draft a new one at any time. If you feel that your circumstances have changed or that your agreement is no longer sufficient, feel free to draft a new one with any changes that you agree upon.
When to Modify the Cohabitation Agreement
It is always recommended that individuals review their agreements from time-to-time to ensure that the provisions of the agreement are still aligned with their intent and to ascertain whether any changes or revisions are necessary. Certain life events may require individuals to update or revise their agreements, such as: the purchase of a home, an increase or decrease in salary, the addition of a child to the family, the death of a child, retirement , or a divorce from a spouse. In those circumstances, it is both worthwhile (and sometimes necessary) to revisit your agreement and determine whether any changes should be made. Not only can the drafting of a new agreement or amendments to an existing agreement memorialize your current intent, these changes also serve as a reminder (in that such documents can be stored with your other important records) of your agreement with your partner.
Common Misunderstandings Regarding Cohabitation Agreements
Cohabitation agreements can be an effective tool for protecting your financial future. Unfortunately, they are often surrounded by misconceptions that prevent unmarried couples from properly utilizing this option. Many people assume a cohabitation agreement is only useful if it’s signed before moving in together; however, this is far from the truth. It is best to create a legally binding cohabitation agreement before moving in together, but it’s not too late for couples who are already cohabiting to benefit from such an agreement. An attorney will explain how the two of you can benefit from entering into a cohabitation agreement now that you’re already living together. It’s also a misconception that cohabitation agreements are only useful to the better off partner. This is another misunderstanding that causes couples to balk at the idea of cohabitation agreements. It’s true that the better off partner stands to gain the most; however, the cohabiting couple is afforded the same protections offered to married couples in their premarital agreements. Cohabitation agreements can be used to address debt, as well as division of assets. Debts accrued during the relationship are typically the responsibility of the person who accrued them. You and your partner can use a cohabitation agreement to cover the payment of all debts – whether jointly held or in one person’s name – accrued during the relationship. This is especially important for previously held debt accrued that increases over time. One common misconception about cohabitation agreements is that they can’t be enforced in Massachusetts. However, as explained above, cohabitation agreements carry the same legal weight as a pre-nup does in a divorce. If entered into voluntarily and free of fraud, duress and undue influence, cohabitation agreements stand up to the test in court. Another misconception is that cohabitation agreements are only valid if they are witnessed by a third party. While witnesses and notarization are helpful, they are not legally required. However, you should seek the guidance of an attorney to help you determine the most secure route for your unique situation.
Consult With an Attorney
While it is possible to draft a valid cohabitation agreement by yourself, doing so is not advisable. Even if the agreement is well drafted and effective, the language of Massachusetts law may still render portions of it ineffective. This is even more true of gay and lesbian couples than heterosexual couples because the case law, statutes and attorney general opinions regarding gay and lesbian rights in Massachusetts are still developing.
Having an experienced Massachusetts family law attorney draft the cohabitation agreement is also the best way to ensure that both parties have a full and comprehensive understanding of their legal rights going into the cohabitation period. If the relationship later breaks down and court intervention is necessary, the judge to whom the case is assigned will have a modicum of respect for the persons who drafted the agreement, either separately or jointly, and its enforceability. And while cohabitation agreements are usually based on contract law, the handling of breaches or rescissions are based on property law. Having separate attorneys for each party assists in presenting a balanced argument for equitable remedies.
Cohabitation Agreements vs. Marriage
Cohabitation differs from marriage in Massachusetts. Cohabitation is when a man and a woman live together, although they are not legally married. While this lifestyle is not illegal in any way, in the eyes of the law, a cohabitating couple does not have the same rights, responsibilities or protections as a married one, even if the couple acts like a married couple. For example, cohabitating couples do not have the same inheritance rights: while spouses automatically inherit from a marital estate in the absence of a will stating otherwise, cohabitants do not get a dime without a will in place granting them assets.
Those who are considering cohabitating often ask whether their relationship may become a common law marriage by virtue of the amount of time they spend living together. Massachusetts does not recognize common law marriages , so even long-term cohabitation does not create marriage rights. Even if the couple has joint assets or if one partner supported the other through school, those factors do not equate to common law marriages.
Anticipating problems is the best way for a couple to protect themselves. Many cohabitors in Massachusetts enter into a cohabitation agreement ahead of time; this contract may address such subjects as property rights, financial responsibilities, inheritance responsibilities and other matters. Due to the fact that unmarried couples do not have the same rights under the law as married couples do, it is essential that cohabitating partners protect themselves with such contracts.
