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Custody and Cohabitation

Custody and Cohabitation

By entering into a “living together contract,” unmarried cohabitants can provide rights to one another that are analogous to rights granted to married couples. In these types of situations, an express or implied agreement between a couple living together outside wedlock to share income in consideration of (or exchange for) companionship could be legally enforceable.

If you are a co-habitant, you may also have child custody as well. You need to consider both the agreement that you have made (or are going to make) as well as the best interests of the child that is staying with you. Some questions you’ll need to ask are: (a) do you have sole custody or only minimum standard parent time? (b) Is it in your child’s best interests to live with you and this other person? (c) is your child safe here? (d) are we eventually going to get married? (e) do we get along well enough to provide stability for this child? (f) and others.

When an agreement expressly includes consideration of sexual services provided by one of the parties, a court is more likely to find the contract unenforceable. For example, if one partner agrees to share his or her income in return for the other partner’s love and companionship, a court may find that the contract implicates “meretricious” (apparently attractive, but actually of little value or relating to a prostitute) sexual activity. The court may refuse to enforce the contract. Proving an oral agreement or an implied contract between unmarried cohabitants is also difficult, and several courts have refused to recognize such an agreement due to lack of proof.

Cohabitation Agreement Requirements

The majority of states now recognizes these cohabitation agreements, though many require that the agreement be in writing and be signed by the parties. The legal requirements for valid cohabitation contracts tend to parallel the requirements of some other contracts, because they’re essentially just another type of contract. Only a small number of recent cases have held that contracts between unmarried cohabitants are unenforceable.
A cohabitation agreement is more flexible and less regulated than a marital agreement. Couples typically include the following key points in their contracts: (a) Financial support during the relationship or after; (b) Distribution of property in case of death or breakup; (c)
Payment of debts from before and during the relationship: (d) Determination of health care insurance responsibility; (e) Decide on support, custody, or visitation rights for minor children, but keep in mind that a court can disagree with this and decide differently based on what’s in the best interests of the children; (f)Division of the principal residence upon death of one partners or breakup; (g) Creation of a joint tenants with rights of survivorship allowing the other partner to own the shared home if the other dies or adding both partners’ names to the deed; (f) Creation of advanced health care directives or health power of attorneys to allow both partners to make decisions about the other’s health care in case of incapacity; and (g) other things to consider.

Cohabitation Agreements v. Prenuptial Agreements

Premarital and cohabitation agreements are apples and oranges. If you marry your partner when you previously had a cohabitation agreement, it will not be in effect after the marriage. In contrast, the whole purpose of the prenup is to determine what happens after marriage, in case the couple divorces. All states enforce at least some prenups and almost all states recognize cohabitation agreements.

Custody and Cohabitation Lawyer Free Consultation

When you need legal help regarding custody or cohabitation, please call Ascent Law at (801) 676-5506 for your free consultation. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506