Collaborative Practice and Cohabitation Agreements
Collaborative Practice is a useful tool for more than just divorce dispute resolution. Couples sharing space informally or in a committed relationship who are looking to amicably and respectfully create a set of rules together to govern that relationship are also well served by Collaborative Practice.
What is a Cohabitation Agreement?
A Cohabitation Agreement is a set of rules created by a couple who are living together but have chosen not to marry or to register as state domestic partners (which brings about the same legal rights and obligations as marriage—registered domestic partners are treated as spouses for all purposes). Even though not legally bound to one another as spouses or state domestic partners. they may want to organize and structure their financial arrangements for the duration of their relationship and for defining what would happen if they ultimately separate.
Since a Cohabitation Agreement does not contemplate marriage and is not entered into during the marriage, it is governed by basic contract civil law rather than Family Law. Because of that difference, there are no fiduciary duties involved, but a valid contract also requires that both parties freely, voluntarily and intelligently sign the agreement. Few of these agreements affect children in an enforceable manner, except as to parental rights in surrogacy and adoption situations.
Why Have a Cohabitation Agreement?
Couples in a committed relationship: Couples may be in a committed relationship but for one reason or another choose not to marry. Perhaps one of the parties is in debt, or needs extensive medical care, or it may simply be a daunting psychological commitment for one or both of them. Perhaps one of the parties is legally married to another person, and either is not able to be divorced for religious reasons or the divorce itself is taking an inordinate amount of time to complete. Some couples, while they may have no legal property or spousal support rights, may want to acknowledge their committed relationship by defining their financial responsibilities to one another, by allocating what might otherwise be separate property to the other, or by providing financial assistance for the other person in the event of a separation. Some couples may be in a committed relationship but simply want to avoid any financial entanglement, property rights or support obligations that might conceivably be attributed to their cohabitation.
Couples in a purely financial arrangement: Other couples may be simply “room-mates” living together for purely financial reasons, who are not emotionally committed to one another, but want to set out their respective responsibilities for their expenses and ensure that their separate property assets and income are protected.
People who co-own property: Even though not necessarily “couples”, people who co-own property might want to set out the benefits, privileges, obligations and responsibilities connected to their joint property in writing.
What Does the Process Look Like?
Before a first draft is created, both parties are educated about their existing legal rights and responsibilities (or lack of same) given their choice to forego being married or registered domestic partners.
In creating their Agreement, the same basic information is developed:
- Each person’s goals for the relationship;
- Each person’s goals for himself or herself;
- Each person’s goals for the other person;
- Each person’s concerns giving rise to his or her belief that a Cohabitation Agreement is needed; and
- Each person’s concerns about the consequences of a Cohabitation Agreement.
The attorneys draft the Cohabitation Agreement based on their discussions with the parties and jointly present the first draft to the parties for their review and comments. Once the parties have provided their input, the Agreement is finalized.
What About the Rest of the Team?
In a Collaborative Cohabitation Agreement process, adding professionals other than the attorneys to the team could enhance the process and if the Agreement is between a committed couple, strengthen the relationship. Working with a financial professional can help the parties, even if not in a committed relationship, understand their finances and make better plans and rules to live by. Working with mental health professionals (coaches) can prepare the parties for healthier negotiations.
If you and you’re your live-in partner or “room-mate” believe that you might want to create a Cohabitation Agreement, the professionals of the San Francisco Collaborative Practice Group are trained to make this a productive and positive process. To learn more, contact any of our professionals, all of whom would be pleased to discuss your process options and help you decide which would best work for the two of you.
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To learn more about Collaborative Practice visit the San Francisco Collaborative Practice Group. The Members of the San Francisco Collaborative Practice Group are trained in both Mediation and Collaborative Practice and can assist you in whichever process you choose.