By Douglas A. Harrison
Over the past 37 years, Connatser Family Law attorney Doug Harrison has helped hundreds of clients negotiate premarital, post-marital and cohabitation agreements. In the following post, Doug explains how cohabitation agreements help couples worry less by living life with financial transparency and financial certainty.
Many couples move in together when they want to take their relationships to the next level – but that doesn’t always mean marriage is on their minds. This is often true for people with sizeable assets who have experienced a painful divorce or were widowed after a lengthy marriage.
Cohabitating without a marriage license doesn’t diminish the love two people feel for one another. However, financial questions and concerns can put undue stress on a relationship – something that could be avoided by having a frank and honest conversation about financial expectations and the signing of a cohabitation agreement.
Cohabitation agreements allow couples to spell out financial and other arrangements in black and white. That way the couple can focus on developing their relationship and enjoying life without uncertainty. Such was the case for a client I helped recently.
Couples can protect a legacy and provide for a significant other with cohabitation agreements
I negotiated a cohabitation agreement for a man who had lost his wife of more than 30 years. He was very lonely and eventually met a lovely woman. After dating for several months, the two discussed moving in together. He resisted.
The client had a good deal of money, so entering into a new relationship worried him, primarily because he wanted to preserve most of his estate for his children and grandchildren. His new “partner” was nervous, too. She had gone through a terrible divorce and hoped to enter a relationship where she could feel secure without trap doors.
After a series of negotiations, the goals of both parties were met. The agreement ensured his estate was preserved and that there would be reasonable transition provisions for her in the event the two parted ways or he died. Both parties were relieved when the agreement was signed, and they were excited to move on with their lives without financial worries, suspicion or disagreement.
Cohabitation agreements also enable couples to avoid disputes related to common law marriage
For many couples, one of the most important reasons to get a cohabitation agreement is to clearly set forth that the parties do not intend to form a common law or informal marriage under Texas law.
In Texas, there are three requirements that need to be met in order for the court to rule that a common law or informal marriage exists. Proof must be presented in court that both parties agreed to be married, they did so while living in the state of Texas, and they both held out to the public they were husband and wife while living in the state of Texas. The evidence also has to show that the parties intended to have a present and permanent marital relationship, and neither party can be under the age of 18.
Today, people wait longer to marry than they used to, which can result in an unintended problem. As time goes on, many couples end up with disputed facts.
For example, one party may say, “I thought since we lived together for so long and shared finances, we were in a common law marriage.” Conversely, the other party might say, “That wasn’t my intent. Sure, we did have a joint bank account with both of our names on it, and I did introduce you to my friends as my spouse on occasion, but I never intended for us to be married.”
There is no “common law divorce” in Texas, although there can be a presumption against a common law marriage if no action to prove the marriage has been filed within two years of the separation of the partners.
Without a cohabitation agreement, couples risk creating an informal or common law marriage. In Texas, this essentially means the couple could be legally married and community property becomes involved. If the couple decides to end the relationship, they would need to get a divorce and divide community property.
Cohabitation agreements allow couples to state in writing: “We are not getting married, and if we ever intend to get married, we will do so in a formal ceremony with a marriage license. Until that happens, we are not married, we are not creating community property, and neither one of us is relying on promises that ‘I’ll take care of you,’ or ‘I will be provided for,’ should we decide to part ways.”
Put it in writing to eliminate uncertainty and enjoy life
If you want to protect a legacy, provide for a significant other’s future and avoid the hassle of untangling yourself from a common law marriage, contact a reputable family law attorney near you. He or she can explain the advantages and limitations of cohabitation agreements and help you negotiate an agreement that will bring you and your partner peace of mind.
Douglas A. Harrison is a veteran family lawyer known throughout Texas for his expert handling of complex business and property claims in divorce. To learn more about premarital, post-marital and cohabitation agreements in Dallas and Collin Counties, please call 214-306-8441 to speak confidentially with a knowledgeable and compassionate member of the Connatser Family Law team.
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