Mediation and Cohabitation Agreements
Mediation and Collaborative Practice are useful tools for more than just divorce dispute resolution. Couples in an anticipated or ongoing relationship who are looking to amicably and respectfully create a set of rules together to govern that relationship are also well served by Mediation and Collaborative Practice. These sets of rules are known as Premarital, Postmarital or Cohabitation Agreements.
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 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, 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 Law rather than Family Law. There are no fiduciary duties involved, but a valid contract also requires that both parties freely, voluntarily and intelligently sign the agreement.
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.
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 mediator drafts the Cohabitation Agreement based on his or her discussions with the couple, and presents the first draft to the parties for their review and comments. Once the couple has provided their input, the Agreement is finalized.
Many attorneys recommend that parties have their own attorneys to educate them as to their legal rights, to support them in the process, to review the final Agreement with the client, and to countersign it. There is, however, no legal support for the proposition that a Cohabitation Agreement is subject to the same rules as Premarital or Postmarital Agreements, and the preferences for independent legal representation may not be as compelling.
What About the Rest of the Team?
In a mediated or collaborative Cohabitation Agreement process, adding professionals other than the attorneys to the team can enhance the process and strengthen the relationship. Working with a financial professional can help the couple understand their finances and make better plans and rules to live by—and also take the fear out of the commitments they might be making and the Agreement they are drafting. Working with mental health professionals in the process can prepare the couple for healthier negotiations and for their new life together, particularly when they are blending families and working with difficult emotional issues in the drafting of the Cohabitation Agreement.
If you and the person you are living with 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.