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Cohabitation Agreements

A Cohabitation Agreement is a contract entered into by persons living together but not contemplating marriage. It is similar to a prenuptial agreement, and helps resolve factual disputes by clarifying the unmarried partners’ intentions regarding distribution of their property upon the couple’s separation. It details the nature and value of the couple’s property, how the property will be divided in the event of separation, how debts and liabilities would be divided, how expenses will be paid, and by whom,  whether any support obligations will arise at the termination of the relationship, and how property will be distributed at death.

Cohabitation Agreements are best paired with an Unmarried Couples’ Trusts.

Even if unmarried couples prudently set up wills, trusts, and other estate planning documents to ensure that their property is distributed according to their wishes, family conflicts may still arise to derail those carefully laid plans. Family members who refuse to accept an unmarried couples’ relationship may challenge their estate plan, alleging fraud, duress, undue influence or a lack of capacity.  It is often advisable for unmarried couples to plan ahead for these conflicts by executing cohabitation agreements, including strong “no contest” clauses in their wills and trusts, documenting their capacity, and confirming their intent as expressed in their Wills/Trusts by way of a Certificate of Independent Review. If a couple anticipates family conflict, they should take advantage of additional tools to ensure their intent is clarified beyond a shadow of a doubt.

A cohabitation agreement can be superseded by way of a Premarital Agreement (PMA) in the event the couple intends to eventually marry. A PMA is a very technical document entered into before marriage in order to establish each party’s property rights and support obligations in the event of divorce. And, couples who are already married and who did not enter into a prenuptial agreement, may still “determine their own fate” at divorce by entering into a Postnuptial Agreement to accomplish the same results.

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