11/29/2010 05:32 am ET Updated May 25, 2011

Should You Have a Cohabitation Agreement?

According to a recent survey conducted by the Pew Research Center in association with Time Magazine, four out of ten Americans believe marriage is becoming obsolete. Conversely, the Pew Research survey reports, cohabitation--where couples live together as unmarried partners--is on the rise, and younger Americans, as a whole, are significantly less concerned about this trend, than their older counterparts.

Cohabiters beware: You may deliberately forego the formalities of marriage, but depending on where you live, or where you move to, the legal obligations you owe your partner are all too familiar. The rights and obligations of unmarried partners vary significantly from state to state, and in some cases, mirror the rights and obligations of married spouses.

The financially disadvantaged unmarried partner fares poorly in states like New York, which presently decline to attach legal significance to any relationship not solemnized in marriage. New York courts will not redistribute property acquired during a marital-like relationship or award palimony (monetary support akin to alimony) to an unmarried partner. As a consequence, the unmarried partner may find themselves dispossessed of their "permanent" home if predeceased by the titled partner, who fails to timely establish joint ownership of a shared residence or inconveniently neglects to execute a will.

Courts in several states, including New Jersey, award palimony based on representations sometimes oral, sometimes implied, from one unmarried partner to another, that he or she would be provided for in the future. The obligor partner need not be alive to pay palimony. Unmarried partners have successfully litigated palimony suits against the estates of predeceased partners.

Are you planning to relocate to Seattle with a "significant other" for a lucrative new position with Microsoft? Washington courts reserve the power to equitably redistribute property from one unmarried partner to the other acquired during a "committed intimate relationship" (a stable marital-like relationship that until 2007, Washington courts derogatorily labeled a "meretricious relationship"). Washington courts determine whether a sufficiently marital-like relationship exists on a case-by-case basis, considering among other factors, if there has been continuous cohabitation, the duration of the relationship, the purpose of the relationship, and the pooling of resources and services for joint purposes.

Individuals residing with a partner, or thinking about residing with a partner, should consider entering into a cohabitation agreement (a.k.a. a "living together" agreement) designating the extent to which each partner is responsible for joint expenses and ultimately to each other.
Thus, the developing law of cohabitation creates a conundrum for the non-committal: It may have been difficult to explain to a long-term partner that you are not ready for marriage. How will he or she react to a request for a cohabitation agreement from a "significant other"?

(This post was co-authored by an associate attorney in my firm, Benjamin A. Lilien)