Cohabitation Agreements - A New Family Law Trend

April 27, 2012

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Many San Diego couples are deciding to skip the marriage ceremony before they move in together. Unlike married couples, these cohabitating couples are not well protected if a split occurs. More and more unmarried couples are considering entering into prenuptial or cohabitation agreements in order to control the outcome of a breakup.

A cohabitation agreement is a legally binding contract that is drawn up by an attorney. The parties to these contracts are seeking similar rights as those afforded to married couples. These couples find it much easier to agree on important issues before the relationship is over and the parties have potentially bitter feelings toward each other. Couples address many issues in cohabitations agreements such as: property division, support, and custody of any pets. One major motivation to enter into a cohabitation agreement is the acquisition of property. An unmarried couple interested in purchasing real property together or that agrees to have one spouse move into the house of the other will face many difficult decisions. A cohabitation agreement can define the rights and responsibilities of both parties

In San Diego, family courts will not honor agreements between parties prospectively limiting future rights to child support, child custody and visitation. The health, safety and welfare of children are matters of public policy in California therefore the State refuses to limit a child's access to financial support or a relationship with a parent.

Currently most states, including California, do not recognize common law marriages. Throughout the states that do recognize or have recognized common law marriage the requirements of a common law marriage differ. Generally a common law marriage exists if:

(1) both parties hold themselves out to be husband and wife;
(2) both parties consent to the marriage;
(3) the parties are cohabitating;
(4) the parties have a reputation throughout the community of being married.

Because common law spouses are given rights where common law marriages are recognized, unmarried cohabitants may be under the misconception that they are also entitled to "marital rights" in the State of California. Even if a couple satisfies all four of the usual elements to establish a common law marriage in California, they will not be entitled to any additional rights.

One area where courts have begun to recognize some rights and protections between unmarried cohabitants is in the area of support. This trend, which began in the 1970's with the Marvin v. Marvin case, is commonly known as "palimony." Under this area of family law, a judge may order one former cohabitant to provide financial support to the other if certain elements are satisfied. Unlike support ordered to a former spouse, "palimony" seems to have a strong basis in contract law. If one party promises to support the other that promise may be enforced as a binding contract. A cohabitation agreement is not so different than a "palimony contract" because both result in the enforcement of an agreement reached by two parties before the end of the relationship.

Please contact us if you have questions regarding custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.