Cohabitation Agreements in California

More couples are choosing to live together without getting married than ever before. There are many reasons you may want to skip the marriage ceremony, but that can lead to a messy breakup if the relationship ends. If you and your partner are choosing to remain unmarried, a California cohabitation agreement could help protect both partners if you go your separate ways.

Cohabitation Definition

Cohabitation may sound complicated, but it simply means when romantic partners live together before, or instead of, getting married. Cohabitating couples support one another, share expenses and household responsibilities, and even raise children together. They may choose to co-own property or open joint bank accounts, and they may even refer to each other as spouses. However, they are not legally married.

Fifty years ago, cohabitation was practically unheard of. Now, it is common. According to the U.S. Census Bureau, as of 2018, nearly 10% of people ages 18 to 24, and almost 15% of people ages 25 to 34, live with an unmarried partner. The Pew Research Center said that as of 2017, 59% of adults had cohabitated with a partner at some point in their lives.

California Law on Cohabitation vs Marriage

Many people think of marriage as a religious or cultural event. However, a marriage license creates a legal connection between spouses that give them certain rights and responsibilities towards one another. Spousal rights cover everything from how you file taxes to inheritance upon one spouse’s death. Cohabitants (people who cohabitate) don’t have those same rights. California does not have common-law marriage. No matter how long you are roommates with your partner, you will still be treated as single under the law.

However, the biggest difference is how California law treats breakups in cases of cohabitation and divorce. A legal marriage relationship can only end in a divorce. California divorce law provides a framework for spouses to dissolve their marriage, divide their property, and determine whether either spouse will need ongoing financial support. These laws make sure that neither spouse can take advantage of the other financially and walk away with everything.

Cohabiting couples aren’t given the same protections. While cohabiting parents can get help from the courts resolving child custody and child support, when a cohabiting relationship ends, the partners are generally left to their own devices to divide up their property.  There are some civil law protections for “aggrieved” partners when unmarried couples break up, but they are limited, difficult to enforce, and often lead to expensive lawsuits. A better option for unmarried couples is to enter into a cohabitation agreement before moving in together or taking their relationship to the next level.

What is a Cohabitation Agreement?

A California cohabitation agreement (sometimes called a living-together agreement or domestic agreement) is a contract between romantic partners who live together. The living-together agreement can lay out the couple’s financial plans, anticipate changes that might happen during the relationship, and account for problems that may arise if the couple should ever break up. It is similar to a prenuptial agreement between married couples.

Originally, cohabitation agreements were most common between LGBTQ+ couples who were unable to get married. They gave gay and lesbian couples some of the same protections available to their straight counterparts. However, gay marriage has been legal in California since 2008. LGBTQ+ couples seeking those protections may now file a marriage license the same as heterosexual couples.

But that doesn’t mean that marriage is right for everyone. Today, cohabitation agreements give gay and straight couples the flexibility to define their own relationships, while giving California courts guidance for how to resolve disputes when those relationships end. Putting together a cohabitation agreement while your relationship is strong can provide protection to a dependent partner and peace of mind to everyone involved.

What Should Your Living-Together Agreement Include?

One of the best aspects of cohabitation agreements is that they are very flexible. They must be valid contracts, which means each party must know and acknowledge the terms of the agreement, it must be in writing, and each party must receive something in consideration for signing it (other than sexual favors). They also must generally address the payment for and maintenance of the shared household, and must be fair to all parties. Beyond that, you and your partner can customize your agreement to suit your needs. Common cohabitation agreement terms include:

  • How income and expenses will be divided between the parties
  • Who will be responsible for paying household bills and upkeep
  • Whether property will be acquired jointly or separately
  • Contingencies for if either party becomes disabled or unable to work
  • Plans for how pensions or retirement assets will be shared
  • Whether you plan to adopt or use alternate reproductive options (such as sperm donors, IVF, or a surrogate) to have children together
  • Whether you will take steps to make both parties the legal parents of any children
  • How you plan to divide childcare obligations
  • If one partner will sacrifice career or economic opportunities to raise your children, whether that spouse be entitled to financial support if the relationship ends
  • How property purchased during the relationship will be divided
  • Who is entitled to live in your home after a breakup
  • How you will resolve any disputes over property division (i.e. mediation, arbitration)
  • Whether you intend to create estate planning documents allowing the other party to inherit if you pass away

Your cohabitation agreement should also allow you to make adjustments as circumstances change. It should lay out how the agreement can be amended, and if there are any circumstances that will cause it to change or terminate automatically.

Because living-together agreements can be highly customized and personal, it is important that you work with an experienced family law attorney to negotiate their terms, and write them in a clear and enforceable way. At ADZ Law, LLP, our family law attorneys understand California cohabitation laws and can help you create a customized living-together agreement to guide your relationship and give you a safety net, should you ever break up. We can also help you enforce an existing cohabitation agreement, or get a fair division of property based on California civil law if you never got around to signing one. We invite you to contact ADZ Law, LLP to schedule a consultation to learn more about our team, and how we can help you plan for a better future with your partner.