Cohabitation Agreements: Making Breaking Up Less Hard To Do

by Lauren Ennis

For centuries, marriage has been considered the cornerstone of the American family. As time goes on, however, many couples are choosing to forgo the rings and ceremonies in favor of a set of keys to a shared living space.  Cohabitating, while a major step in any relationship, does not carry the same legal responsibilities and consequences of marriage, which in turns makes living together appear to be a less stressful alternative. What many couples do not realize until after they are already on the verge of breaking-up and moving out, however, is that the same lack of paperwork and legal regulations that made cohabitating so appealing also carries the potential to make a break-up more complicated than many divorces. Michael Kilkelly, a practicing Massachusetts family law attorney and Middlesex Community College Paralegal Studies professor, offered some suggestions on how to avoid stress and conflict associated with a separation.

Let’s start by looking at fictional couple Bob and Jane and what happened when the time came for one of them to pack up and move out. After three years of dating, Bob and Jane wanted to take their relationship to a more serious level of commitment, but both were still starting out in their careers, and neither felt financially ready for marriage and children. The couple seemed to have found the perfect alternative when they decided to live together, and Jane moved into Bob’s house. They agreed that because Bob had already spent a significant amount of money purchasing and maintaining the home, Jane should contribute her fair share by paying all of the remaining mortgage payments on the house. The arrangement seemed reasonable enough to Jane until four years later, when she and Bob decided to break-up. Since Bob had bought the house and was living there before Jane moved in, he reasoned that she should be the one to move out without being paid additional money because the money she paid into the house was equivalent to her rent. She felt that she had contributed equally to the house’s cost and that Bob should compensate her for the money that she had spent on the mortgage and upkeep of the house; or if he refused, suggested that they both move out and split the proceeds. He refused both of her offers, prompting her to consult a lawyer and bring her case to court. The judge determined three key facts: the deed to the house was in Bob’s name only, Bob and Jane were not married, and there was no evidence to support the intentions of both parties to jointly own the property.  As a result, she ruled that Jane was not entitled to a share of the house that was legally in Bob’s name. After the emotional and financial toll of bringing her case to court only to receive a losing ruling, Jane felt as though she had been left empty-handed and wondered what she could have done differently to have reached a better outcome.

While Jane’s story is indeed an unhappy one, it is one that is constantly being played-out between couples across the country. What makes the situation all the more frustrating is the fact that Jane, like countless other cohabitants, could have avoided her financial woes if she and Bob had signed a cohabitation agreement. Attorney Kilkelly recommends that unmarried couples planning to cohabitate prepare a cohabitation agreement.  Attorney Kilkelly explained that a cohabitation agreement, is a relatively new concept that provides cohabitating couples with the opportunity to financially protect themselves, even though they are not eligible for the same benefits (spousal support, property loss claim, loss of consortium) as married couples. Much like a pre-nuptial agreement, a cohabitation agreement is a written agreement that is signed by both parties and outlines property and asset division and child custody (as long as the provisions are aligned with Massachusetts law and in the child’s best interest) in the event of a break-up. Unlike a pre-nuptial agreement, however, a cohabitation agreement is regarded as a contract rather than a marital agreement and is judged by the stringent standards of contract law rather than the more flexible, fairness-based, standards of family law. As a result, if the agreement is found to be legally valid, all provisions of the agreement will be enforced, regardless of any modifications the parties may later wish to make.

Beyond its structure, a cohabitation agreement is also similar to a business contract in that it has a reputation for being less than romantic. In the years that he has practiced family law, Attorney Kilkelly has found that many couples fear that broaching such a topic would indicate a lack of trust in their significant other and the stability of their relationship, and often prefer to avoid the awkwardness of such a discussion altogether. In order to make that difficult conversation easier, couples can choose to mediate their cohabitation agreement either before they move in together or soon after. Attorney Kilkelly explains that mediation entails the use of a neutral third party, usually an attorney who has taken mediation training, designated to act as a facilitator with the couple. The couple will be able to discuss their concerns face-to-face, and with the guidance and support of the mediator, work together to clarify their mutual intentions. By choosing mediation, couples also provide themselves with access to an excellent knowledge resource; their mediator. A mediator will often have prior experience with other cases, and as such will already be prepared to bring up matters that couples may not have even thought of discussing.  This additional knowledge provides the couple with the opportunity to clarify issues that they had not previously discussed, which in turn can give them a better understanding of their agreement and prevent future disagreements in the event of a break-up. Another benefit to this method is that it it is voluntary and if the conversation isn’t working for either partner, they can end the mediation at any time. As a result, the parties are able to maintain control of their agreement and determine the outcome of their own relationship decisions. Using mediation upon moving in often continues to benefit couples even after they break up by enabling them to face the end of their relationship with clear expectations and removing the confusion and conflict of trying to sort out their needs and wants after they have already parted ways.

Let’s look at another fictional couple, Joe and Tim, and see what happened when they chose to mediate their cohabitation agreement. After their attempt to negotiate a cohabitation agreement themselves led to tension in their relationship, the couple decided to try mediation. Following some initial awkwardness, they found that the inclusion of a mediator made communication less heated and allowed them to look at their situation from a less emotional, more objective, perspective. They were also glad that they chose to mediate when the mediator brought up issues that they had not previously discussed, such as custody of Lady, the dog that they had purchased together. When they broke up six years later, Joe and Tim were able to avoid the chaos and distress of dividing their belongings by following the terms that they had previously agreed to. Two years after their break-up, Joe and Tim have remained friends and credit their amicable break-up with the clear expectations and mutual understanding that they were able to approach their break-up with after mediating their cohabitation agreement. For any couple considering cohabitating or already living together, a cohabitation agreement is a highly recommended way to establish your rights without exchanging rings.  For any couples on the verge of moving out who would rather follow the example of Joe and Time than that of Bob and Jane, mediation could be the alternative you need to reach a resolution.

The content of this blog is intended for informational purposes only and does not constitute legal advice. As such, any articles featured on this blog are not meant to serve as or substitute for legal advice. No action should be taken on reliance of the content of this article or any information posted on the Middlesex Community College Law Center Blog. Any specific legal questions should be directed to a licensed attorney.

Lauren Ennis is a paralegal student at Middlesex Community College and is currently working as a consumer mediator at the MCC Law Center and interning at the Youth Advocacy Division juvenile defense office.