Cohabitation Agreement Massachusetts: Protecting Unmarried Couples
Why unmarried couples need legal protection when living together and raising a family
With marriage rates declining, more couples are choosing to live together and have children outside of social norms. While we love challenging the status quo, this can unfortunately put you in a tough spot legally and financially. When a cohabitation relationship ends, there are no default legal protections for cohabitating parties like a marriage contract provides for divorcing spouses. This is why a Cohabitation Agreement in Massachusetts can provide important legal and financial protections that unmarried couples otherwise do not have.
Why Unmarried Couples Need a Cohabitation Agreement
Unlike married couples, unmarried partners do not receive the same protections under Massachusetts divorce laws. The court can’t step in and say that you are owed any property rights because you don’t have a legally recognizable relationship conveying that type of status.
For example, in Massachusetts, there are laws that say that each spouse must receive an equitable distribution of the marital estate in a divorce. In plain English, this means that each party gets a fair share of the assets (bank accounts, real estate, retirement accounts, personal property, etc.) and responsibility for debt. There is also the opportunity to request alimony (AKA spousal support).
The same is not true for cohabitating parties. This is one of the primary reasons many couples choose to create a Cohabitation Agreement in Massachusetts before problems arise.
If you move in with your partner you may help pay towards the household expenses for a period of time. But what if they are the only one on the deed of the property? You could potentially file an action called a Complaint in Equity to request some of those funds back if you separate. However, it’s extremely unlikely that you would end up with half of the equity in the property. In reality, the attorney’s fees to litigate the matter may outweigh the benefit of pursuing the case.
The Risks of Living Together Without Legal Protection
A Real-Life Example of Why a Cohabitation Agreement Matters
We had a case where we had an unmarried Mom and Dad living together with their child in a domestic partnership.
Mom quit her career to stay home and be the primary caretaker to their medically fragile child. The Dad ran a business and ended up getting sick, so the Mom became caretaker to both of them while also helping to keep that business afloat.
When they broke up, she rightfully felt she deserved some financial compensation not only for quitting her job to provide childcare, but also for the time she spent taking care of her partner and his business while he was ill. However, there was no recourse available to her because they weren’t married. And there is no common law marriage recognized in Massachusetts.
The only financial remedy she could seek from the court was child support.
We want to prevent future cases like this from happening. We hate to see someone pour their life into a relationship, a home, and a family and walk away feeling someone took advantage of them.
How Can a Cohabitation Agreement in Massachusetts Protect Women?
Women are especially vulnerable to this type of scenario because they are still the predominant gender that take on the lion’s share of childcare responsibilities.
When women leave the traditional workforce, they often stop contributing to retirement savings. Meanwhile their partner can continue working and growing their retirement accounts.
If the couple were married and later divorced, the Wife would get a portion of the Husband’s retirement account in the divorce case in the equitable division of the marital estate. However, the same does not apply to cohabitating parties. The mother who stayed home to care for children would walk away from the relationship without any claim to the father’s retirement funds.
How Can a Cohabitation Agreement Help Men?
Cohabitation is also a dangerous gamble for men.
When a child is born to an unmarried woman, even if he is listed on the child’s birth certificate as the Father, the Mother has sole legal and physical custody of the child until the Father obtains a court order stating otherwise. This is all well and good when the parties are living together as a family unit. But once the relationship deteriorates, mom can unilaterally cut off dad’s access to the children.
At FFL, we’ve had to file emergency motions to establish joint legal custody and parenting time for fathers in this exact same scenario before.
Our Recommendation
Our recommendation for those who choose not to marry is to execute a Cohabitation Agreement with your partner. It’s a contract similar to a prenup, where you agree on the terms of what will happen if your relationship ends before it actually does. You enter into this contract when you are still on good terms with your partner and thinking rationally and fairly. It comes from a place of good intentions and love.
Of note, a Cohabitation Agreement in Massachusetts can only cover property and support and not custody or child-related issues.
What Can a Cohabitation Agreement Cover?
Some potential questions that a Cohabitation Agreement can cover include:
- How would we divide our bank accounts?
- How would we divide our retirement accounts?
- If either of us owns real estate, how would we divide that? Would we sell? How would we split the proceeds? Will one of us “buy-out” the other? For how much?
- What will happen to our pets? Will we share time with them? How will we pay for their expenses moving forward?
- How would we divide our personal property? (Furniture, collections, tangible items)
- Will either of us pay support to the other? If so, how much and for how long?
- How will we pay off our debts?
While it may feel empowering to challenge societal expectations and build a lasting partnership outside of marriage, it’s crucial to protect yourself and your future. Book some time with us to draft your cohabitation agreement today!