In our modern world, unmarried couples who live together are commonplace. Similar to the importance of a prenuptial agreement for married couples, unmarried couples should consider entering into cohabitation agreements to protect their property interests if the relationship breaks down and they separate.
Cohabitation Under Michigan Law
It may come as a surprise, but according to the Michigan Penal Code, “[a]ny man or woman, not being married to each other, who lewdly and lasciviously associates and cohabits together… is guilty of a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00.”
Although still on the books, this antiquated 1931 statute is almost never enforced, largely due to its vague and unclear language. Moreover, the law contravenes a current reality: an increasing number of millennials are cohabitating before getting married. There have been several unsuccessful attempts to repeal it over the years, including two pending legislative proposals to amend what has been called “the silliest law” in Michigan. Unsurprisingly, the law does little to protect the interests of cohabitating individuals who decide against marriage. However, Michigan does recognize certain contractual agreements arising out of cohabitation.
Elements of a Cohabitation Agreement in Michigan
When an unmarried couple chooses to live together, not only does each person bring his or her property into the household, but they also accumulate property together. These individually- and jointly-owned assets can run the gamut, from smaller items such as household furnishings, books, and artwork, to real estate, automobiles, and investments.
To avoid any later confusion or expensive legal disputes, it’s a good idea for the couple to establish a cohabitation agreement – essentially a property agreement – to delineate the assets that each person owns and how those items will be distributed if the couple separates. The longer the couple lives the together, the greater the need for a cohabitation agreement, but the parties can enter into the contract at any time during the course of their relationship. It is typically appropriate to consider a cohabitation agreement when discussing the purchase or lease of a joint asset. Like any legally binding document, a cohabitation agreement should be specific, including descriptions for:
- Each existing asset, the percentage of ownership, and how it is owned (in the case of real estate, for example, “joint tenants with right of survivorship,” “tenants in common,” etc.)
- Ownership of newly acquired property
- The manner in which the couple’s income, debts, and expenses are shared
- Management of bank accounts, investment brokerage accounts, credit cards, loans, insurance policies, etc.
- Division and distribution of assets in the event of a separation, including buyout provisions
- The process the parties will use for resolving property disputes and the consequences for any party violating the agreement
While there may be blank forms and templates available across the internet, couples are best advised to consult an attorney to discuss and prepare a cohabitation agreement, and it is highly recommended that each party consult his or her own attorney. This also provides you an opportunity to discuss and understand the status of certain property ownership, like real estate, to ensure infallibility.
Enforcing a Cohabitation Agreement
Despite the existence of Michigan’s arcane and outdated statue, state courts do recognize the validity of cohabitation agreements.
In addition to the specific terms and provisions described above, a judge will look for other factors to enforce a cohabitation agreement, such as:
- Signatures of both parties as an indication that each entered into the agreement willingly and freely
- Evidence that each party engaged his or her own attorney (or declined the opportunity to engage an attorney during negotiations)
- All provisions of the agreement are in writing (as opposed to an implied contract or oral agreement)
In many situations, a cohabitation agreement might be part of a larger estate plan. In other cases, the agreement might provide for support payments to ex-partners or the rights of the surviving partner after the death of his or her partner. A cohabitation agreement should not, however, include provisions for custody, support, or visitation of the couple’s children – those considerations should be addressed by a Michigan court and may jeopardize the validity of the agreement.
If you have questions about a cohabitation agreement, living arrangement, estate planning, or family law issue, please contact us – we’ll be happy to help.
Amy Foerster believes personal investment and a passionate drive to determine the best possible approach are the only ways to serve her clients. Her practice includes family law, employment law, and Native American/federal Indian law. She earned her Juris Degree from Michigan State University College of Law, where she received the Jurisprudence Achievement Award for Integrative Law and Social Work.