Unmarried and Living Together in NC? Consider a Cohabitation Agreement

There are many reasons why couples choose to live together without getting married. Some couples may be planning a wedding and want to make sure they are compatible; some may not be interested in marriage. Some may not even be true couples at all, but platonic roommates looking to save a little money by sharing a space.

If you are living together, you should consider a Cohabitation Agreement. A Cohabitation Agreement is a legally binding contract, enforceable under North Carolina law, which can outline issues like the dispersal of assets and debts, healthcare decisions, and estate planning issues, among others.  Interestingly, these agreements are not restricted to only those in a romantic relationship. If you are just sharing expenses with someone, think of it more as a roommate agreement.

• Roommate Cohabitation Agreements work well in addressing things like who brought what into the housing (furniture, tv’s, etc.), who will pay what for any maintenance expenses not covered by the landlord if renting, or that are incurred by the owner/roommate while you are there, who will mow the yard, division of food costs, etc. While this is not common, a Cohabitation Agreement between roommates, like the one Sheldon delighted in drafting and quoting in Big Bang Theory, are a very good idea.
• Romantic Partner Cohabitation Agreements are more common. If you are in a serious and long-term romantic relationship where you are likely to intertwine your finances in some way or another, having this type of agreement in place is very important. Many people do not realize that if you are not married to someone, North Carolina does not recognize civil unions, domestic partnerships, or common law marriage. Other states have recognized these alternative forms of living together for a romantic purpose, but in the Winston-Salem, Greensboro, and High Point Triad region, as well as the rest of the state, if you live together without a Cohabitation Agreement and then break up, there is no legal recourse for the division of property other than that applying to any two people who might live together or not.

Note: Certain cities and counties will recognize domestic partnerships, but the rights afforded to couples differ by jurisdiction, and are not universally recognized throughout the state. The recognition of these partnerships does not alter or change state law, and a state court cannot treat them as marriages for purposes of property division or spousal support under Chapter 50 of the North Carolina General Statutes. County recognition of these partnerships is largely to allow county employees or residents to take advantage of benefits provided by the county government or through a county ordinance.

First things first: Is it illegal to live together in North Carolina?

Not anymore. In 1805, it was illegal to live with your partner if you were unmarried, and it stayed that way for about 200 years. (They called it the “living in sin” statute.) In 2005, the State ruled the cohabitation law unconstitutional. So, it is not illegal to live together when unmarried.

Does North Carolina define cohabitation anywhere?

Yes, but only in the context of what it means when a court is addressing claims for spousal support under N.C. Gen. Stat. § 50-16.9:

…cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.

So why should I sign a Cohabitation Agreement with my partner?

• Do you own property?
• Share property with your partner?
• Want to purchase property with your partner?
• Have you made agreements with your partner about having children together while not married?
• Have you made agreements about who will work and pay for what while together, and whether there will be any assistance to the unmarried partner if the couple separates?

If so, you could benefit from a Cohabitation Agreement.

Married couples are granted certain rights under the law because marriage is, at its heart, a contract. It’s usually a contract signed by two people because they love each other, but it’s a contract nonetheless. And when you create and sign a contract that is legally binding, it ensures certain protections to both parties. For married people, the state’s statutes deal with how to divide property, deal with income and support of a spouse, and determine child custody and support.

Unmarried couples generally have no such contract (unless they sign a Cohabitation Agreement), which means they have no similar protections as to property and income either during the relationship or after it ends. The State’s child custody and child support laws apply whether you were ever married or not.

For example, say you move into your partner’s home and:

1. You contribute to the overall running of the household. If you break up, you have no legal right to the house at all –you can’t force your ex to sell it and split the proceeds with you or force him or her to buy you out of “your half;” the house belongs solely to your ex, and you cannot make a claim for it.
2. This is also true if you help pay the mortgage for years—you gain no actual ownership of the property in doing so.
3. You helped pay for a major remodel? Same answer.

It does not matter how long you have lived together – two weeks, two years, or two decades – the State only recognizes legal marriages.

What is a valid marriage In North Carolina? Under N.C. Gen. Stat. § 51-1:

A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:

1. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and
2. With the consequent declaration by the minister or magistrate that the persons are husband and wife; or
3. In accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.

Unless there is some kind of contract in place, you are missing out on certain legal protections that are afforded to married couples.

You should consider a Cohabitation Agreement if you…

• Are planning to purchase a home (or other property) together
• Currently run a business together
• Have significant healthcare concerns or a terminal illness
• Are living in a home owned by your partner
• Have children (either with your current partner or from a previous relationship)

No matter why you choose to live with someone, you should ensure that you are protected legally in case the relationship ends.

FACT: You can sign a Cohabitation Agreement even if you already live together.

What goes into a Cohabitation Agreement?

Your Cohabitation Agreement should reflect your exact needs – as a couple and as individuals. There are many different forms to choose from, too, including forms for:

• Cohabitation Agreement Between Parties Living Together but Remaining Unmarried with Residence Owned by One of the Parties
• Non-Marital Cohabitation Living Together Agreement
• Agreement between Unmarried Individuals to Purchase and Hold Residence as Joint Tenants with Right of Survivorship
• Cohabitation Agreement Between Parties Living Together but Remaining Unmarried
• Cohabitation Termination Agreement

A strong Cohabitation Agreement will outline things like:

• When the two parties entered into the agreement
• When the agreement goes into effect
• Full disclosures of assets and debts of both parties
• What properties and assets will remain in the hands of the original owners
• How parties will handle contributions for joint purchases
• How assets may be distributed in the event of a death of one partner

If you are unsure what kind of Cohabitation Agreement is right for you, a family law attorney from Hartsoe & Associates, P.C. can help. A benefit of working with one of our attorneys is that we can create a Cohabitation Agreement that is tailored to your specific needs.

For example, your Cohabitation Agreement can cover not only real property or business concerns, but also who will keep any pets you adopt together, or how you will divide dividends from stock purchases made through a joint account. In short, it can cover anything you want that’s related to your property, assets, and debts.

Is a Cohabitation Agreement still valid if we get married?

Generally, no. The new marriage contract supersedes the cohabitation contract. However, if the decisions you made regarding assets and debts for your cohabitation agreement are still applicable and agreeable to you, then you may already have the basis for a Premarital Agreement. Premarital Agreements have some different standards to be considered and you and your partner can agree on what needs to change from the Cohabitation Agreement, and then one of our attorneys in Winston-Salem or Greensboro can help you create the new agreement.

A Cohabitation Agreement is a legally binding and enforceable document that can protect you, your partner, and your assets. At Hartsoe & Associates, P.C., we can help you draft an agreement that works for you and your needs, and help you transition if you and your partner decide you wish to marry later. To schedule a consultation with an experienced family lawyer in our Winston-Salem or Greensboro offices, please call 336-725-1985 or fill out our contact form. Serving the Piedmont Triad and the surrounding areas.