Any individual contemplating a commitment to live with another and to purchase assets jointly would be wise to consult a lawyer regarding a Cohabitation Agreement. This applies to same-sex couples, as well as other couples who may choose not to marry. If a married couple wants to end their relationship, a divorce court has the power to achieve economic justice by distributing the couple’s marital assets in an equitable fashion. Equitable principles, however, need not be applied to an unmarried couple deciding to separate. Problems arise particularly when an unmarried couple has acquired real estate as joint owners. Under divorce principles of equitable distribution, the court would look at the source of funds that were used to acquire the jointly-held property. However, with the unmarried couple, only common law principles of property law apply, and a 50-50 split, regardless of contribution, is likely to rule the day. Therefore, if an unmarried couple decides to buy property, but they make disproportionate contributions toward the purchase, it cannot be assumed that the proceeds a party will receive upon sale of the property will reflect his or her larger contribution.
In some circumstances, one party to a non-marital relationship will sacrifice his or her career to care for a child born to the couple. However, that unmarried parent has no protection by way of spousal support, alimony or exclusive possession of a jointly-owned residence ordered by a divorce court. A Cohabitation Agreement, or even a later Co-Parenting Agreement, could address economic issues such as these. Without such an agreement, when the couple separates, although there will probably be orders for child support and custody, the house may have to be sold, and protection for the parent who sacrificed his or her career is lost.
