Can Cohabitants Protect Themselves Like Spouses?

Millions of couples live together in our nation without ever marrying.  Some of these relationships produce children; all involve some commingling of assets.  When cohabitants decide to break up, do they have legal remedies like spouses?

The Uniform Dissolution of Marriage Act Missouri adopted some 35 years ago only covers married couples.  Therefore, all of the protections set up for separate and marital property and equitable division have no application to unmarried cohabitants.  Custody and child support provisions do apply to unmarried cohabitants, so we will limit the remainder of this blog post to a discussion of property rights of unmarried cohabitants.

Spouses in anticipation of marriage enter into prenuptial agreements if they wish to set out their respective rights with regard to separate and marital property in the event of divorce.  Our courts have long upheld such agreements as long as they meet certain requirements – full disclosure, access to counsel, absence of fraud and coercion – and a court finds the terms not unconscionable, meaning so one-sided as to be completely unjust.

A prenuptial agreement is nothing more than a contract with mutual consideration; should not cohabitants have the same ability to contract?  It appears the answer to that question is “yes,” though no court in Missouri has so explicitly held, though several have approved of partitioning real property as tenancies in common even in absence of a written agreement.  We should note that California first recognized such agreements in 1976, and many courts around the country have followed course.  The only limitation on the legality of these contracts, separate from the normal rules of contract, is that the basis of the agreement cannot be “meretricious sexual relations,” an odd legal term that means money for sex as in prostitution.

So, if unmarried cohabitants wanted to protect themselves by agreement, what could they do by contract?  Essentially any of the property aspects covered by a typical prenuptial agreement, including designating separate property and specifying how to divide jointly held assets in the event they no longer cohabitate, including any increase in value to these jointly held assets.  This could involve selling a house to more complex issues involving contributions to retirement funds.  While California recognizes support arrangements – famously known as palimony – Missouri has not explicitly recognized such agreements, so unmarried cohabitants would have to be clever in crafting support issues into an agreement.

Perhaps to many people’s surprise, unmarried cohabitants can protect their interests in commingled or jointly held assets in the event of the end of cohabitation.  This can have different consequences than during marriage.  For example, a house that becomes jointly titled during a marriage is presumed marital property and the spouse who feels otherwise would have to show through source of funds a different allocation.  With unmarried cohabitants, jointly titling the home creates a tenancy in common of equal shares regardless of contribution.  So, without a governing agreement, one cohabitant could be quite unhappy or surprisingly happy, depending on the perspective.  Absent an agreement, the unhappy cohabitant would have to pursue a variety of legal claims to try and collect for his or her contribution, without a guarantee of success.

What could unmarried cohabitants do in such an agreement?  They could specify who would keep the home; how much the remaining habitant would have to pay the moving habitant; to what extent financial and non-financial contributions to the maintenance or improvement of the home will be compensated when cohabitation ends; who would be responsible and in what share for taxes, maintenance, utilities and the like for the shared residence; who would have ownership of furnishings purchased separately or together; and who would have what gifts given to the couple by family or friends.

We hope we have shown the pros and cons of cohabitation agreements and why unmarried cohabitants should contact an attorney in advance of cohabitation.

If you have questions about cohabitation agreements, contact us – we can help.

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