Cohabitation and Property Rights

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 What is Cohabitation?

Cohabitation occurs when individuals who are not married live together. In most situations, the individuals are not treated as a married couple, even if they have been residing together for a long period of time.

In the context of marriage or divorce, cohabitation typically refers to a situation in which individuals are residing with another individual they are romantically involved with but who is not their spouse. Cohabitants are typically not bound by marriage or divorce laws.

Not being bound by marriage or divorce laws may be beneficial or detrimental to the individuals, depending on their situation. On one hand, the individuals will not be eligible to receive protections or benefits that married couples may receive.

On the other hand, however, cohabitants can define the bounds of their relationship without being subjected to restrictive marriage laws, especially with regard to their property.

In many states, cohabitation agreements are recognized as legal contracts. If a couple continues to live together following the termination of their romantic relationship, the contract becomes a roommate agreement.

What is a Cohabitation Agreement?

A cohabitation agreement is a contract between two individuals who are cohabitants. It is similar to a prenuptial agreement. This type of agreement outlines the rights and obligations of both parties similar to those rights and obligations which are available to married couples.

Cohabitation agreements almost always include financial arrangements and issues concerning property, including the acquisition and distribution of assets. Similar to other types of contracts, cohabitation agreements can be tailored to suit the needs of the individuals and their situation.

These agreements can cover a wide range of issues, including:

  • Housing arrangements;
  • Business matters; and
  • Personal affairs.

Family law attorneys often encourage cohabitants to draft a written cohabitation agreement because agreements are extremely helpful in resolving any future legal disputes which may arise between the cohabitants. Generally, it is best if a cohabitation agreement fills in gaps which are in the laws of the individual’s state.

For example, many state laws do not address the issue of children of unmarried couples or the distribution of property upon the death of a cohabitant. Therefore, individuals who are cohabitating may wish to include these types of provisions in their agreements to protect their rights. A local attorney is best equipped to handle these issues.

What is a Domestic Partnership?

There are numerous states within the United States that currently recognize domestic partnerships. A domestic partnership is a relationship between two individuals who are not married and are cohabitating together in a committed relationship.

Typically, individuals who seek to register their domestic partnership relationships do so in order to have similar benefits and privileges that are provided to married couples. Although registered domestic partnership relationships may be afforded some of the benefits and privileges of married individuals, the two are not exactly alike.

Therefore, although individuals who are registered as domestic partners are entitled to some of the same legal benefits as married individuals, they are not entitled to all of the same benefits. The benefits provided to domestic partnership relationships may vary by state but often include:

  • Visitation rights. Registered domestic partners are permitted to visit their partners in hospitals or in prisons;
  • Right to sue. Registered domestic partners have the right to sue for the wrongful death of their partner;
  • Sick leave. Registered domestic partners are given the right to use employer sick leave to care for their partner; or
  • Insurance. Registered domestic partners are permitted to get coverage through their partner’s:
    • health insurance;
    • dental insurance;
    • vision insurance; and
    • life insurance.

It is important to note that, depending on the domestic partnership laws of the individual’s state, a domestic partnership may have all of the same benefits as a marriage. In addition, terminating a domestic partnership involves a court filing process that is similar to that of a divorce.

This means that the domestic partners may be required to deal with issues similar to divorce if they terminate their partnership. This may include:

  • Child support;
  • Property division; and
  • Support payments.

Is Cohabitation Related to Domestic Partnership?

In certain cases, cohabitating partners may be subject to domestic partnership laws. However, cohabitation and domestic partnerships are not necessarily the same thing. Generally, individuals will need to register with their state in order to qualify as a domestic partnership.

How Does Cohabitation Affect a Person’s Property Rights?

In the majority of situations, cohabitation does not affect each individual’s property rights. Each individual partner is typically treated as a separate individual, meaning that they are not subject to marital property laws including community property or shared property. This may change, however, if the individuals have addressed their property rights in a cohabitation agreement.

What is a Cohabitation Agreement?

The majority of states required the individuals to form a cohabitation agreement if they desire to share the rights to the property which they accumulate during the time that they are living together. Without a cohabitation agreement, the individuals typically will not have any property rights to the other individual’s assets. Cohabitation agreements typically cover:

  • Real property rights;
  • The distribution of property upon termination of the cohabitation arrangement or upon the death of one of the individuals; and
  • Support payments.

Do Cohabitating Partners Have Rights to Support Payments?

In general, cohabitating partners are not entitled to support payments. Support payments are monetary payments made from one partner to another in the event that the marriage or domestic partnership terminates.

If the individuals wish to have rights to support payments, this issue must be outlined in the cohabitation agreement. Conversely, if the individuals are registered as a domestic partnership, it may be possible for one of the partners to file for support payments if the cohabitation agreement is terminated.

Are Unmarried Partners Liable for Each Other’s Debts?

Generally, unmarried partners are not liable for their partner’s debts, even if the individuals are living together. Most states will treat each individual’s debts, separately, especially with regard to tax debt or monies owed to the government.

In some states, however, registered domestic partners may be held liable for debts that are related to basic living costs, including food and clothing. However, partners who are only living together will be responsible for their own individual debts.

What Happens to the Partner’s Property if One of the Partners Dies?

If the partners do not have a cohabitation agreement, each individual’s property will be distributed according to the probate laws of the state in which they reside. It is possible that the surviving partner may not receive any property distributions because probate laws typically distribute property to surviving family members first. Property distribution may also be addressed in an individual’s will.

The only exception to these rules may be regarding joint possession of real property. If the individuals purchased property together, such as a home as joint tenants, each could assume the property rights of the other partner if one partner passes away.

Do I Need a Lawyer for Issues with Cohabitation and Property Rights?

It is essential to have the assistance of a family lawyer for any cohabitation and property rights issues you may face. As noted above, the laws and rights of each state are different so it is important to consult with an attorney to ensure your wishes are carried out in the event of the termination of the domestic partnership or the death of one of the partners.

A lawyer can assist you in drafting a cohabitation agreement and ensure property rights are addressed. In the event that you must go to court, your lawyer will represent you and defend your property rights.

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