Living Together v. Marriage: What to do if you don't say "I Do."

Long term relationships naturally lead to an important decision: the choice between marriage or cohabitation. A couple deciding whether marriage is the best option has to weigh many unique and very personal concerns about the couple’s future and about the autonomy of each individual in the partnership. For a lot of couples, cohabitation comes with many benefits over marriage and avoids a lot of the legal headaches associated with marriage and divorce. In fact, today, more Americans ages 18–44 have chosen to cohabit (59%) at some point with a partner than have married (50%). Yet, in the eyes of the law, unmarried couples are just two strangers who receive almost none of the legal rights and benefits that married couples do, no matter if the cohabiting couple has been together for 2, 10, or 30 years. Also, despite popular belief, common law marriages are not commonly recognized in most states today. Only a minority of states still recognize common law marriages, and Tennessee is not one of them.* So, if couples living together decide to separate, or if one partner is severely injured, cohabiting couples can find themselves facing numerous issues and questions that married couples would not face such as: how debt will be allocated; how jointly held property will be separated; who can make medical decisions for the other; how an estate will be divided; and etc.

So, how can couples who choose to live together before marrying or instead of marrying ensure that their rights and interests are protected? One solution is to create a cohabitation agreement. A cohabitation agreement is a written contract that discusses the nature of a couple’s relationship and creates a legally enforceable structure to protect each person’s interests in the relationship

What can cohabitation agreements cover?

Property: If a couple buys a condo or home together, makes any investments together, shares finances, or even shares vehicles, the cohabitation agreement will help both partners ensure that they know exactly how property and possessions will be divided or allocated should any unforeseen events occur.

Pets: Even Fido can become an issue if a couple separates, so cohabitation agreements can help a couple establish ground rules for how pets will be cared for and shared.

Estates: Married individuals automatically have a right to any jointly owned property shared with a spouse if their spouse dies. Unmarried couples do not have the same right. A cohabitation agreement will allow an individual in an unmarried couple to leave property to his or her surviving partner.

Retirement and Savings: Couples who are investing in each other for the long haul can use cohabitation agreements to establish each partner’s responsibility for saving money, investing money, and planning for retirement. Likewise, the agreement can be used to determine how retirement and savings will be divided if the couple separates.

Healthcare Decisions: As discussed in our recent post, unmarried couples do not have the ability to make health care decisions for a partner without some type of formal agreement between the couple. With a cohabitation agreement, a couple can set up an advanced directive that will allow partners to make important decisions for each other during an emergency

Debts: Couples often accrue joint debt when they decide to purchase property or other expensive items together. The cohabitation agreement gives each partner assurance that he or she will not be solely responsible for debt that actually belongs to both members in the relationship.

Support: Cohabitation agreements can also allow couples to set up support payments that would protect one partner who perhaps earns less if the couple separates.

Cohabitation agreements also cover a wide variety of other rights and interests in addition to the sampling above. So, if you are cohabiting with a partner, such agreements can clear up a large portion of potential issues you might face if you and your partner separate or if an emergency arises. Although these agreements cannot cover every single issue that marriage might, cohabitation agreements are an excellent resource to give you and your partner peace of mind. Importantly, cohabitation agreements are legal documents that must meet all the necessary elements of contract law in order to be enforceable. So, an attorney is a crucial resource to have if you think a cohabitation agreement might be right for you and your significant other.

At Joe Kwon Law, we are dedicated to being your legal resource for matters such as cohabitation agreements and much more. We are here to listen to you and to assist you with any questions or concerns you may have. No matter the dynamic of your relationship, we would love to help you and your significant other find the solutions that fit your life. Contact us today if you would like to discuss how we can help make your life (and your relationship) easier.

*Although Tennessee does not recognize a common law marriage formed in the state of Tennessee, if a couple moves from another state in which a common law marriage was formed, Tennessee will recognize the couple’s common law marriage from that state.