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When To Get A Cohabitation Agreement

Updated on
January 20, 2021
Article written by
Attorney Kevin O'Flaherty

This article will discuss when a couple should consider drafting a cohabitation agreement and what that agreement should cover. We will answer the following questions:


  • What is a cohabitation agreement?
  • When is the right time to get a cohabitation agreement?
  • What should be included in a cohabitation agreement?
  • Do I need a lawyer for a cohabitation agreement?


More and more Americans are choosing to live and raise a family together without getting married. Whether for financial, legal, or personal reasons, many want to avoid the “unnecessary complications” associated with marriage. While marriage and the commitment that comes with it should never be considered lightly, the belief that not getting married frees you from complications is short-sighted. A cohabitation agreement can protect couples who live and raise a family together from a nasty breakup with no clear delineation of who should have what.


What Is A Cohabitation Agreement?


A cohabitation agreement is analogous to a prenuptial agreement without the nuptials. It is a contract between two people describing what should happen in the event they separate. The main difference between the two is that a cohabitation agreement allows the couple to create the “legal framework” of the relationship, making the contract more flexible but also inadvertently limiting. Whereas, marriage IS the contract and is the same for every couple married in Illinois. This means that when a couple gets divorced, their legal marriage contract is used to enforce the divorce process under the Illinois Law of Dissolution of Marriage. Cohabitating couples only have their agreement to fall back in court, and that agreement may not have addressed every aspect of the relationship.


When Is The Right Time To Get A Cohabitation Agreement?


Just as for marriage, there’s no perfect time to draft a cohabitation agreement. Every relationship is unique, with different needs, wants, and responsibilities. Perhaps the biggest difference with a cohabitation agreement is that it should come about after serious discussion between both parties. We are unlikely to see cohabitation rings and elaborate surprise cohabitation videos on Youtube anytime soon. 


When a couple has been together for a significant amount of time, is considering buying a property together, opening a joint bank account, or is expecting a child, it might be the right time for a cohabitation agreement. An agreement doesn’t mean you question the fortitude of your relationship. It comes back to the ambiguous legal trapping of cohabitation. If a couple stays together for many years, has children, and shares assets without ever getting married, there’s no rigid legal process for them to fall back on.


What Should Be Included In A Cohabitation Agreement?


Each couple’s agreement will vary based on their assets, expenses, property, needs, and expectations. A cohabitation agreement can be narrow and only address one or two joint elements such as a house or healthcare expenses, or it can be comprehensive and cover all aspects of the relationship. Open communication and objectivity are key to drafting a functional agreement that will satisfy both parties. Common items to include in the cohabitation agreement include:


  • Property that each party had when coming into the relationship;
  • Property that each party has accumulated, together or separate, during the relationship;
  • Property inherited or received as a gift during the relationship;
  • Food, healthcare, utility and childcare costs;
  • Handling property and assets in the event of a break-up or if one party dies;
  • How to resolve disagreements 
  • Parental responsibilities in the case of existing and future children


The contract should be written down, possibly evaluated by a lawyer, and signed by both parties. A court may consider an oral or implied agreement if there is substantial evidence to support it, but if only one party signs the agreement then it’s essentially worthless.


Do I Need A Lawyer For A Cohabitation Agreement?


Couples that have multiple properties, considerable assets, or share a business should strongly consider having a lawyer review any cohabitation agreement. When one couple brings in significant assets to the relationship, children are involved, or one party depends on the other for financial or health care needs, a lawyer should also be involved in the cohabitation agreement. Some might be hesitant to enter into such an agreement, seeing it as synonymous with marriage. But, trying to split up a relationship’s worth of assets amicably, without the legal framework of marriage and divorce, can be daunting.


When To Get A Cohabitation Agreement
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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