Cohabitation Agreement – Avoiding the Vows

Couples often have lengthy periods of cohabitation without making plans to marry. When individuals anticipate avoiding the vows of marriage in favor of living together with a less formal relationship, it is still possible to clarify the terms by which financial responsibilities will be shared with a cohabitation agreement. In contrast, individuals with a clear plan to marry often enter into a prenuptial agreement about preserving the assets that they acquire prior to marriage, but a prenuptial agreement does not take effect until a wedding occurs.You can read more about prenuptial agreements and their effect on equitable distribution at the time of divorce here:

When partners desire instead to live together in a comparatively informal relationship, it may still benefit them to outline the terms of their living arrangement with a contract in the form of a cohabitation agreement, designed to determine their respective rights to the property of the other. In this agreement, individuals may promise to share income, debts, and property, or, in the alternative, a cohabitation agreement may describe a goal of maintaining separate property, so that their acquired assets while they are living together are never considered to legally belong to both partners. “Separate property” is a term often used by courts in divorce cases to decide what may be considered an equitable distribution of marital assets. Without a cohabitation agreement and without a prenuptial agreement, couples who live together for a considerable length of time prior to marriage, are most often considered by the courts to have acquired joint marital assets from the date of the marriage to the date of the separation. You can learn more about separate property and equitable division here:

Since Pennsylvania laws do not describe the effect that a long period of cohabitation may have on equitable distribution, it is hard to speculate whether cohabitation would be a relevant factor that is taken into consideration. In New Hampshire, the Supreme Court recently determined that assets that were accumulated prior to marriage may belong to both parties and divided as part of their divorce decree. In the case of In the Matter of Deborah Munson and Coralee Bell, the New Hampshire Court added the period of cohabitation to determine that the marriage could be considered “long-term” for purposes of determining a fair division of property and an award of alimony. The Court ruled that, in New Hampshire premarital cohabitation is “a factor that the court may consider in divorce proceedings when determining whether to depart from the presumption that an equal division is an equitable distribution of property.”

In Pennsylvania, Courts follow a similar presumption that ‘equal’ is ‘equitable’ in divorce. While the statute regarding equitable distribution, 23 Pa. C.S.A, 3501 allows the court to consider “all relevant factors,” it provides a list of what constitutes a relevant factor. This includes the length of the marriage. The law specifically name the “length” or “duration” of the marriage, but not the amount of time that the parties have lived together. The date of the actual wedding vows to the date of the separation is used to measure what is called marital property.

The Munson and Beal case was unique because the parties were a same-sex couple who were not permitted by law to enter into a traditional marriage during some of their cohabitation. The Supreme Court clarified that the consideration of a period of cohabitation would not be restricted based on sexual orientation. The Court said “We further note that premarital cohabitation is not unique to same-sex couples . . . . Our holding that the court may consider premarital cohabitation applies to all divorce proceedings.” Other states’ higher Courts have considered the same issue with varying results.

It appears to be undetermined whether a cohabitation agreement can affect the decisions, but it is worth considering as a way to secure the intentions of the couple living together. A premarital agreement written and signed properly will the initial acquisition of shared property for those who marry.

If you have questions about cohabitation agreements, premarital agreements or divorce and equitable distribution, contact The Mazza Law Group, P.C. to talk to an experienced family law attorney for information and advice.

Cohabitation Agreement – Avoiding the Vows was last modified: September 29th, 2016 by Judith Homan