As a cohabitation agreement is a sort of contract, it is helpful to first clarify what a contract is. A contract is a legally-binding document between parties outlining what they are obligated to do and what they are entitled to receive in a specific situation. In a romantic relationship, couples can choose to draft a contract outlining specific terms of their relationship, as well as to define ownership of any potentially shared property. An example of this would be how these terms may include what will happen to shared property, such as a house, should the couple break up.

A cohabitation agreement may also be referred to as a “living together” contract. This is a specific type of contract between two individuals who are not married. However, these individuals are romantically involved and living together. This sort of agreement can outline each person’s rights and obligations for issues such as:

  • Child custody and child support;
  • Financial support during and after the relationship;
  • Distribution of property after a breakup;
  • Any joint bank account agreements; and/or
  • Payment of debts during and after the relationship.

A premarital agreement is also known as a prenuptial agreement. A prenuptial agreement is an agreement entered into by a couple prior to marriage. This agreement outlines how the couple’s assets and debts are to be divided should the couple divorce. Prenuptial agreements require a full disclosure of each person’s finances, and generally must be a written document in order to be legally enforceable. The document must be signed prior to the marriage taking place, or it will not be valid.

Prenuptial agreements often contain common clauses which are intended to ensure peace of mind for both parties. Some examples of such clauses could include:

  • Property and Financial Separation: Such clauses protect each spouse’s separate property, and protect one spouse from the other’s debt;
  • Alimony: This clause is used to determine the level of support owed to a spouse, both in divorce and death;
  • Division of Responsibilities: This clause establishes the responsibilities of each spouse after their vows have been exchanged;
  • Child Inheritance: If one of the spouses were in a prior marriage, these terms will ensure that the children can keep a portion of the estate. Without this clause, the estate would go directly to the most recent spouse;
  • Forum Selection: The forum selection clause is included to determine which jurisdiction will govern any dispute that comes up before the wedding. Forum selection may also determine how the dispute is to be resolved;
  • Choice of Law: This clause will determine what laws will govern any dispute which comes up before the wedding. Forum selection clauses determine the location and form of dispute resolution, while choice of law clauses determine the rules which the couple must follow; and
  • Sunset Provisions: As prenuptial agreements are contracts for pre-marriage agreements, it could be important for the agreement to state when the contract will end.

Should I Enter into a Cohabitation Agreement Instead of a Premarital Agreement?

If a couple is only living together with no intention of getting married, they may only enter into a cohabitation agreement. If the couple is planning on getting married to each other at some point, such as if they are engaged or are planning their wedding, they may enter into a prenuptial agreement.

A couple who is planning on getting married may still enter into a cohabitation agreement in order to provide coverage for the amount of time leading up to the wedding, if the wedding date is far off. This is because people do not generally sign a prenuptial agreement until shortly before the wedding.

Are There Any Other Differences Between the Two Contracts? Can a Cohabitation Agreement Override a Prenuptial Agreement?

Generally speaking, a cohabitation agreement provides more flexibility than what a prenuptial agreement can provide. Additionally, a cohabitation agreement may not be legally-binding in all jurisdictions, whereas a valid prenuptial agreement is recognized in every state. In the jurisdictions which recognize cohabitation agreements, the contract must be written, and cannot be oral.

A cohabitation agreement cannot override a prenuptial agreement. Once a couple is married, the prenuptial agreement overrides any preexisting cohabitation agreement that the couple may have had in place prior to getting married.

Should I Talk to an Attorney about Cohabitation and Prenuptial Agreements?

If you are considering entering into a cohabitation or prenuptial agreement, it is in your best interest to consult with a skilled and knowledgeable family lawyer. An experienced and local family law attorney can help you determine which sort of agreement would best suit your needs, and can draft a fair and legally sound agreement for you.

An attorney will also be aware of any specific state laws that may affect your case. Finally, an attorney can also represent you in court, as needed, should any issues arise.