Legal Talk – Cohabitation Agreements

Living in Sin, Shacking Up, Nonmarital Conjugal Cohabitation.    Question:  can you tell which one is mentioned in the Texas Business & Commerce Code?

Yes, even a dry tomb like the TBCC gets racy sometimes. 

If you are living with someone else and are NOT planning to be married, then lines can quickly blur about responsibility and ownership of debts and assets.  An informal living arrangement can give rise to all sorts of unintended consequences – an oral contract, a fiduciary obligation, a degree of confidentiality, or even (for only heterosexual couples – this is Texas, remember) a common-law marriage.  Not to mention the problems that can be caused by children, parents, employers – in short, anyone who may be inclined to meddle with the blissfully happy unwedded couple.

The solution?  A written cohabitation agreement, signed with all of the formalities of a regular contract.

Curiously, the Texas Family Code, that bastion of all relationship idiosyncrasies, doesn’t mention cohabitation agreements.  It talks about premarital agreements (signed in anticipation of marriage) and post-marital agreements (signed after marriage), pre-divorce settlement agreements (signed in anticipation of a divorce and facilitated through mediation) and post-divorce settlements.   No, it is left to the business lawyers to keep unmarried folks out of trouble. 

A cohabitation agreement usually does at least the following:

•    States the couple is not married and should not be considered married (the agreement can be revoked if the couple has a later change of heart)

•    Identifies assets and debts, and who owns them

•    Describes responsibilities for a joint living arrangement (who pays the lease/mortgage and living expenses, is there a joint bank account or credit card, who will be named as an insured)

•    Describes that property that is separate will stay separate (same with jointly-owned property)

•    Sets out any other special arrangements

Separate documents should be drafted to address health and property issues.  That is because, in the absence of a written directive, the law will default to a relative to inherit, make a health care decision, serve as guardian, or make burial arrangements.  If that isn’t the wish of the couple, then it is extremely important to get their wishes in writing. 

“Nonmarital conjugal cohabitation.”   Why don’t we see that on a Hallmark© card?

Virginia Hammerle is a Denton County attorney Board Certified in Civil Trial Law. For more information, visit www.hammerle.com or contact her at [email protected].