Cohabitation Agreements to Protect a Couple’s Interests

August 28th, 2019 by

In the world of romance, we’re pretty sure no one has ever uttered the line, “My darling, I love you so much, let’s create a cohabitation agreement together.”

Cohabitation agreements to protect couple's interests in Illinois

Negotiating the legal terms of your relationship is anything but romantic for most people. However, if you’re in an unmarried but serious relationship, setting out a cohabitation agreement could be one of the most important things you and your partner do together.

What is a cohabitation agreement?

“Cohabitation” is a legal term describing a situation in which romantic partners reside together and merge portions of their financial interests, but do not enter into a legal marriage.

Cohabitation agreements are designed to protect both parties’ interests during a relationship and at the end of one, whether the end is precipitated by a breakup or a death. A legally binding cohabitation agreement is a powerful tool for solidifying a mutual understanding of what the parties expect from their relationship.

Cohabitation agreements are created between couples of all types who have decided for a variety of reasons to become partners, but not formally solidify their union as a marriage.

When two people combine their interests or assets in this way, there is no mechanism under the law, such as is the case with legal marriage, to dissolve the union in a formally equitable way. This leaves the process up to the individuals, who may be managing an acrimonious split.

With a cohabitation agreement, the two parties can set their own terms as to jointly own property, along with the consequences of its potential end.

Illinois Law Behind Cohabitation Agreements

Up until 2012, Illinois law refused cohabitation agreements as a way to encourage traditional marriage and discourage “competing” arrangements, following a decision in the case of Hewitt vs. Hewitt. Since the passage of the Illinois Religious Freedom Protection and Civil Union Act, the state has accepted cohabitation agreements.

Why create a cohabitation agreement?

  1. Financial considerations primarily drive couples to enter into cohabitation agreements. When two people merge lives, they often make mutual purchases; overlap financial accounts and obligations; and transfer money and property between one another.

    Cohabitation agreements between unmarried partners clarify what portion of funds each person must contribute to the household’s ongoing expenses such as bill payments, support for children and even groceries and household goods. Further, if the relationship ends, cohabitation agreements lay out what each person is entitled to financially and in regards to mutual assets.
  2. Children and pets shared mutually by unmarried couples also provide another reason to create cohabitation agreements. Though couples may have parenting or support agreement that supersedes it, their cohabitation agreement can indicate how expenses for mutual children will be divided between the parties. If the parents separate, future parenting matters and care of the children would be determined by a family court judge.

    If the couple has pets together, a cohabitation agreement allows them to formally record their plans for sharing expenses related to the pet. It also, importantly, should detail what will happen with the pet if the relationship ends.
  3. Emergency medical and end-of-life considerations are another powerful motivators for creating a cohabitation agreement. In some unfortunate situations, unmarried couples experience a terrible shock when they learn that they have no decision-making power when their partner dies or becomes incapacitated.

    Couples who are legally married automatically retain certain rights over the care and legacy of their partner, while unmarried couples do not. These include making decisions about medical care for their partner if that person is unable to make a decision, what type of experience their partner will have at the end of their life, and how their final arrangements will be handled.
  4. A cohabitation agreement can indicate a person’s wish for their assets and property to be distributed to their unmarried partner. While wills, advanced health care directives and durable powers of attorney are powerful legal tools for securing all these rights for unmarried couples, cohabitation agreements can be used as a precursor or in addition.

What is the difference between a cohabitation agreement and a prenuptial agreement?

A cohabitation agreement acts to protect the interests of unmarried parties who are mingling property and/or assets together but not necessarily intending to get married.  A prenuptial agreement precipitates nuptials forged through legal means or in layperson’s terms, marriage, to protect a party’s premarital property and/or assets.

All cohabitation agreements are unique. Allow the family law attorneys at Sterk Family Law assist you in drafting a cohabitation agreement that suits your needs. Contact us today.

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