Unmarried couples living together can accumulate property while they live together. Ideally the couple should have a property agreement in place that spells out the details about who owns what and how to divide the property in case they separate. This agreement should be used by unmarried couples who have lived together for a long time and have accumulated property. Unmarried couples with no property and who have been living together only for a short time need not have such an agreement in place.
If there is no such agreement, when unmarried couples who have been living together for a long time and have accumulated property separate, it can result in time consuming and costly litigation.
Cohabitation Property Agreement
Your cohabitation property agreement should be drafted according to the specific needs of your relationship. Generally such agreements should address:
• Ownership of assets
• Sharing of Income
• Acquisition and ownership of new assets
• Credit cards, bank accounts, insurance policies and the like
• Distribution of specific assets in case of separation and dispute resolution
Since the house can have a great emotional value, not to mention the financial efforts put in to acquire one, it is important that the agreement deal with the house. The agreement should protect your rights in the house. The agreement should include the following:
• Ownership of the house – whether it is owned by you exclusively or the two of you own it as joint tenants with right of survivorship or as tenants in common. If the house is owned by the two of you as joint tenants with the right of survivorship, then on the death of one partner, the other will inherit the whole house. In case of tenants in common, the share of the deceased partner will be distributed according to his or her will or the state intestacy laws in case there is no will.
• Share of each partner – The agreement can also specify how much of the home can be transferred from one partner to the other. For example, a partner increases his or her share by making the mortgage payments.
• Buyout rights and appraisal – You can decide to allow your partner to buy out your share in the house and vice versa and who will conduct the appraisal to determine the buyout price.
• Separation – The agreement must specify what happens to the house in the event of a break up – who will stay or how the proceeds will be shared if it is sole or whether one partner can buyout the other’s share.
No laws require unmarried cohabitants to support each other. And no state awards alimony or other support payments when an unmarried couple separates. If, however, the cohabitants have entered a contract under which one agrees to support the other, the contract may be enforced (depending on the state in which the cohabitants live or the contract was established). Lawsuits brought to enforce these contracts have been popularly called palimony cases. But, since cohabitants seeking recovery under such an agreement are doing so on the basis of an express or implied contract and not on an alimony statute the word palimony is actually inaccurate.
You should make the agreement in the beginning when your relationship is still sound. This can help prevent disagreement and tension in case you and your partner break up. Separate property can become joint property depending on the circumstances of the case or if one partner alleges that there was an agreement that the separate property shall be joint property. This can become a serious issue if one partner’s income is significantly greater than the other and generally supports the other.
Example: Joe and Jane both unmarried decided to move in together. While Joe is a successful businessman, Jane is unemployed. They buy a home using Joe’s income and Jane fixes it up. They enter into a cohabitation property agreement. The agreement specifies that if Jane fixes the home according to their plans, she will become a joint tenant with right of survivorship and that if they break up, the home and all furniture will be divided equally.
An unmarried cohabitant will not be responsible for the debts of the other unless he or she is a co-signore or a guarantor or the debt is part of a joint account. In case of married couples, each spouse is liable for the martial debts. Domestic partners in some states are liable for all debts incurred for food, clothing, shelter and other basic living expenses.
Property Rights of a Surviving Cohabitating Partner
Cohabitants may own property as joint tenants with the right of survivorship. This means that each co-owner has an undivided equal interest in the property, irrespective of how much each contributed. If one of the co-owners dies, the property belongs entirely to the other co-owner and does not pass through the deceased co-owner’s estate.
Cohabitants may also own property as tenants in common. Each tenant in common owns an agreed upon share of the property; the shares need not be equal. There is no right of survivorship in a tenancy in common. If one co-owner dies, his or her share of the property passes into the estate and is distributed in accordance with the deceased’s will or state intestacy laws. Intestacy laws apply when a person dies without a will.
When people who are not married acquire property jointly, the law presumes that they own it as tenants in common unless the document reflecting ownership states that they are joint owners. The precise language required to create a joint tenancy varies from state to state