Are you an unmarried couple living together? Then you may be said to be “cohabitating.” The general definition of cohabitation is two people living together as if they were a married couple. However, people in these relationships don’t have the same legal rights as those who are actually married. If you want to legally establish your respective rights and duties to each other while remaining unmarried in Alabama, the best thing to do is enter into a cohabitation agreement.
Why is it advisable to enter a cohabitation agreement?
Because Alabama banned the recognition of new common law marriages as of 2017. Common law marriages established before January 1, 2017, continue to be recognized, but unmarried couples who began living together afterward do not accrue marital rights. This is regardless of the length of time or circumstances of their living together as husband and wife in Alabama.
Because cohabitation agreements are legally binding contracts, there are things you need to understand about them. A cohabitation agreement may address a variety of issues, including pooling or separating earnings, how property acquired during the relationship will be held, and how important end-of-life decisions will be made.
Are you living together in Alabama but are not married?
Huntsville family law attorney Leigh Daniel can explain what a cohabitation agreement is and how it would protect you and your partner. If you need help preparing one, Leigh can represent you and work with your partner and their attorney to help craft a solid agreement that meets Alabama’s legal requirements and addresses all of your needs.
To consult with an experienced cohabitation agreement lawyer serving Alabama, call (256) 692-1275 or contact us online today.
Legal Implications of Cohabitation Without an Agreement
To be considered legally married in Alabama, a couple must have their marriage “solemnized” by a minister or other qualified person, provide appropriate marriage documents to a probate court, and either receive a marriage license or otherwise have the marriage officially recorded.
For a common-law marriage to be recognized under Alabama law, the couple, prior to January 1, 2017, must have been legally able to marry, have the intention to marry someday, and must present themselves as married.
Being legally able to marry means there are no legal reasons they cannot marry. Those reasons could include neither party already being married, both being of legal age and the parties not being close blood relatives. To “present themselves as married,” a couple might file joint tax returns, buy a house or sign a lease together, and consistently refer to themselves as married.
But as of 2017 in Alabama, individuals living together in an ongoing sexual relationship without marriage (cohabitating) do not automatically acquire the rights that married people have, such as rights to property and financial assets acquired while the couple was married, regardless of their union’s length, quality or commitment.
A cohabitating couple’s lack of marital property rights can become an issue if the couple splits up or if one party dies without a will. In a divorce in Alabama, the law requires a married couple to equitably divide their marital assets (this is property acquired during the marriage and owned jointly). Upon a married person’s intestate death (without a will), Alabama law automatically makes their spouse their primary heir. A cohabitating partner has no such claim. After an intestate death, for example, because there is no spouse, the decedent’s property goes to their children (if there are any) or parents or siblings.
A cohabitation agreement can stipulate these and other marital rights. A cohabitation agreement may create a legal agreement between the parties that addresses a variety of financial and personal issues.
What Belongs in a Cohabitation Agreement?
A cohabitation agreement is a binding written contract. With a few exceptions, it can address any issue between the two of you.
A typical cohabitation agreement might address:
- How assets acquired individually or jointly during the relationship will be divided if the partnership ends, such as:
- How jointly acquired property, such as real estate, vehicles, artwork or joint bank accounts, will be divided if the relationship ends
- What assets each party brings to the relationship and will retain if the relationship ends
- How gifts received as a couple will be divided
- How debt, whether brought into the relationship or acquired during the relationship, will be divided upon a split
- How the partners will divide such financial responsibilities as mortgage or rent, utilities, and household expenses
- Responsibility for managing household bills, investments, taxes, etc.
- That each will share in and be named the first beneficiary of the other’s pension, profit sharing, or other retirement accounts and life insurance policies
- Whether one partner will be responsible for paying spousal support to the other in the event of a separation, or that neither partner has the obligation to support the other and that each party waives any such claim
- Establishing health care directives and each partner’s designation of the other’s power of attorney
- Incorporating the parameters of each partner’s will and acknowledging each partner’s standing as the other’s heir
- Issues involving children from previous relationships
- Pet responsibilities, including custody and support in the event of a breakup
The state’s laws prohibit cohabitation agreements from stipulating provisions related to child support or child custody. A family law court is required to consider what is in the child’s best interests when approving an estranged couple’s agreement for custody and support or when ruling for a couple that cannot come to an agreement. Also, child support is considered the child’s right, so parents cannot contract it away.
Finally, a cohabitation agreement cannot require any illegal acts, including any language that might be interpreted as promising or requiring sex in exchange for financial payment.
The Importance of Legal Counsel When Drafting A Cohabitation Agreement
In the event of an acrimonious breakup, your cohabitation agreement must stand up as a legally enforceable contract that each party entered into willingly. The alternative could be as messy as any contested divorce.
In addition, each of you must have your own lawyer to advise you about the contents of the agreement and protect your rights. At the very least, you should each have your own lawyer review an agreement you have written together. Preferably, you will each have a lawyer to help you write the agreement.
A cohabitation agreement needs to be fair. If you break up and one party challenges the agreement, a family law judge will likely decide a one-sided agreement is invalid. At that point, each point of the agreement becomes something to be challenged in court in a state that ascribes few rights to a couple living together but not married.
Contact an Experienced Cohabitation Agreement Lawyer in Alabama
As your cohabitation agreement attorney, Leigh Daniel can review the legal document you and your partner have drafted, or help write an agreement that addresses your unique needs while protecting your financial interests. We can provide clarity about your rights and ensure your cohabitation agreement is fair, equitable, and legally sound. We also offer assistance with wills and estate planning.
The attorneys of Leigh Daniel Family Law have decades of combined experience assisting married couples and unmarried people who are cohabitating couples. Our attorneys give each client the individual attention they deserve. Schedule a consultation about your cohabitation agreement today.
