Sept e mb e r 2 0 1 6
Focus
D al l as Bar A ssoci ati on l Headnotes 15
Family Law
Cohabitation Agreements Can Protect Both Sides BY AUBREY CONNATSER
There is a new normal in domestic relations. By the thousands, couples are living together without marrying. This growing phenomenon has produced a noticeable increase in the number and complexity of cohabitation agreements to clean up the mess when relationships go south. According to a 2013 report from the Centers for Disease Control and Prevention (CDC), fully half of heterosexual women ages 15 to 44 lived with their spouse outside marriage, up from 34 percent in 1995. The same CDC report indicated that couples approach cohabitation differently depending on socio-economic factors. People with ample resources often treat cohabitation as preparation for marriage. Live together for a couple of years, get to know each other well, maybe buy a house, then pop the question. For people of modest means, cohabitation sometimes becomes an alternative to marriage altogether. In relationships where one of the partners has significantly higher net worth or annual earnings than the other, pre- and post-marital agreements have always been available to safeguard assets, avoid contentious, costly litigation and clarify other wishes should the couple decide to split up. However, cohabitation agreements can benefit both parties in a relationship when they choose not to marry. In a community property state like Texas, a well-written cohabitation agreement can protect a wealthy person from potential claims of a live-in partner. At the same time, these agreements can shield one party from responsibility for debts and
liabilities incurred due to the business dealings of the other party. For the first time, same-sex couples are taking the same approach to cohabitation agreements as heterosexual couples. In past years, same-sex couples used these agreements, based in contract law, to determine ownership of property when dissolving the relationship. The parties had little or no standing in family court. Since the U.S. Supreme Court affirmed the right of same-sex couples to marry last year, they can make the same choices as opposite-sex couples. Like many family lawyers, we often advise a prenuptial agreement for a marrying couple or a cohabitation agreement for a couple who will live together and do not plan to marry. Without a written agreement, the relationship of a cohabitating couple in Texas could be considered a common law marriage, making dissolution more complex. Texas is one of 10 states and the District of Columbia that currently allow common law marriage. Texas law is clear about the factors that create a common law marriage. • The two parties must agree that they are married. • The couple must cohabitate in Texas as husband and wife. • The couple must “hold themselves out” to other people as husband and wife. The agreement to be married does not have to be written. Evidence of “holding out” as married can be purchasing a car and signing together as spouses on the loan paperwork. The parties might wear weddings bands, take the other party’s name, introduce each other to strangers as hus-
band and wife, or list the other as their husband or wife on their health insurance plan. To disprove claims of common law marriage, the cohabitation agreement must clearly state that the parties do not agree to be married, are not currently married, have never been married and do not intend to get married. It should say that if they do get married sometime in the future, it will be through a ceremony and not common law. The intent of the parties is most important. A well-constructed cohabitation agreement should also spell out the following: • The couple’s financial structure, including who works and who does not, and who pays for what. • What are the obligations of the parties, including all assets and liabilities? • Who owns the property where the couple lives? • What protocols must you follow if one party moves out? This section should include notice provisions. • Requirement to reaffirm this agreement on a continuing basis.
Top 100 Attorneys in Texas Top 50 Women Attorneys in Texas (Thomson Reuters 2014-15) Board Certified in Family Law (Texas Board of Legal Specialization )
“...AUBREY IS OUR COACH ON THE FIELD ...” AUBREY CONNATSER HAS EMERGED AS THE GO-TO DIVORCE ATTORNEY for Dallas-area professionals in law, medicine, business and sports and their spouses. The last two years, she has been selected among the Top 100 Attorneys in Texas as well as one of the Top 50 Women Attorneys in the state. “In sports terms, Aubrey is our coach on the field,” says Connatser Family Law attorney Mike DeBruin. “She knows her role as a top litigator, but she also understands how to get the best out of everyone in cases that involve
To retain Aubrey M. Connatser for a family law matter, call 214 306-8441 or email aubrey@connatserfamilylaw.com.
AUBREY M. CONNATSER, PLLC 300 Crescent Court, Suite 270, Dallas, TX 75201 214 306-8441 | connatserfamilylaw.com info@connatserfamilylaw.com
Aubrey M. Connatser is board certified in family law. She can be reached at aubrey@connatserfamilylaw.com.
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Along with disavowing common law marriage and helping the parties avoid some of the complications of a break-up, cohabitation agreements may provide for inducements to “sweeten the pot” for one party or the other. Those can include a special gift or “signing bonus” at the outset of the agreement or at specific times in the relationship; a monthly spending budget for miscellaneous expenses; guaranteed date nights; and requirements pertaining to wills, trusts, and life insurance. Each party must enter into the agreement voluntarily, and each should be represented by an experienced family law attorney. This is the best way to insure the agreement will hold up in court. For people who want a relationship but do not want to be married, and want to plan ahead to mitigate the financial and emotional turmoil of a possible breakup, a cohabitation agreement makes perfect sense. HN
Wednesday, September 28, Noon at Belo | MCLE 1.00 Speaker: Jack Wilburn, II