Steven Fernandez |

Assets

The American Dream is changing. Years ago, the American Dream looked something like this: go to school, get a job, fall in love, get married, buy a home, have children, retire. It was a common path and defined the lives of many Americans.

Today, however, fewer Americans are sticking to this traditional life trajectory. Fewer young Americans are buying homes, more young Americans are putting off serious romantic relationships until later in life, and fewer young Americans indicate a desire to get even get married, at all.

Today, the idea of getting divorced is an increasingly acceptable notion. This is, of course, if young couples decide to get married at all. The Pew Research Center has found that marriage rates have consistently declined over the past few decades and that “the shares of adults cohabitating and raising children outside of marriage have increased significantly.” In fact, nearly 25% of young adults between the ages of 25-34 who have never been married are cohabitating with a romantic partner. As young couples continue to forego marriage, they also forego the legal protections that accompany the nuptials.

Protections Offered Through Legal Marriage

When couples decide to get married they may do so for a number of reasons. Some of those reasons may be romantic and some may be practical. Getting married affords couples significant legal protections – especially in regard to property.

Classification of Property

When you get married, the property you personally owned before marriage is considered to be your own (“separate property”) and the property you acquire during a marriage is considered to be the property of you and your spouse (“community property”). Generally, if you get a divorce, you are entitled to 50% of the community property while your separate property is entirely yours to keep. The single biggest issue that generally arises is determining how to divide that community property equally.

Inheritances

Married couples are also afforded certain legal rights in the event of the death of a spouse. If you are married and do not specifically designate how you want your assets dispersed they will generally revert to your spouse. You and your spouse are also entitled to certain tax benefits simply for being married.

Couples who choose to cohabitate, rather than marry, are not subject to these legal rights, protections, and benefits.

Cohabitation Agreements Can Offer Crucial Legal Protections

Just because you don’t get married doesn’t mean that you won’t live your lives as though you are married. You may buy property together, receive gifts together, and acquire debt together. How do you determine who gets what if your relationship does not work out? Cohabitation agreements, also known as Living Together Agreements, are essentially contracts between romantic partners that can help to bridge this gap in legal guidance and keep property separate.

 Legal Principles for Cohabitation Agreements

In 1976, the California Supreme Court held that unmarried couples are not subject to marital property rules, but that they can create similar property rules through a contract. The Court established four contract principles that apply to unmarried couples. These principles help us understand how Cohabitation Agreements can look and function.

  1. Cohabitation Agreements can be written;
  2. Cohabitation Agreements can be verbal;
  3. Cohabitation Agreements can be implied; and
  4. If no Cohabitation Agreement exists, a judge may rely on well- established legal doctrines of equity and fairness to divide property.

Many states have followed California’s lead and established rules and regulations for Cohabitation Agreements.

What Is Included in a Cohabitation Agreement?

If you’re serious about your relationship but not interested in the formality of marriage you may want to consider drafting a Cohabitation Agreement. They can offer protections and guidance for both you and your partner in the event of a breakup or death. Inheritances and property reversions do not apply to unmarried couples, so many have been drawn to Cohabitation Agreements to protect their partner’s interest in property in the event of a sudden death.

So, what should you include in a Cohabitation Agreement? Information that can be included in a Cohabitation Agreement includes:

  • Property and Finances: assign specific property rights to property held before the relationship; define how property acquired during the relationship will be owned; and direct how property/debts/assets acquired during the relationship will be divided upon death or separation;
  • Income and Debts: define how income earned during the relationship will be shared and allocated; assignment of ownership of debts acquired before and during;
  • Assets: define how bank accounts, insurance policies, and credit cards will be owned and managed;
  • Child Care: define how children will be cared for (personally and financially) and who will gain custody in the event of divorce or death;
  • Dispute Resolution: define how disputes over property and finances will be resolved in the event of a dissolution of the relationship.

These are simply a few examples of what can be included in a Cohabitation Agreement. The specific details of your Cohabitation Agreement will depend on your specific circumstances and how you want the document to function.

If you are interested in learning more about Cohabitation Agreements you should contact an experienced California family law attorney. At Fernandez & Karney, our Certified Family Law Specialists have more than 50 years of combined experience helping families in the greater Los Angeles area. Call us today to request your free consultation.