Common law marriage is a legal concept that gives some of the rights of married couples to individuals who have been living together for a sufficient period of time but who have not taken the formal steps to get married. In the vast majority of states throughout the United States, the concept of common law marriage has been removed from the law books or statutes and no longer exists, so now if you want the rights of a married couple, you have to actually take the step to get married. Because you aren't undergoing a formal wedding or making a decision to merge when you live together in a "common law" marriage, signing a prenup is not going to be as easy- there are no nuptials for the prenup to predate. Instead, you may wish to sign a cohabitation agreement.
Cohabitation Agreements in a Common Law Marriage
Although "common law marriage" isn't recognized by most of the states any more, many couples still choose to live in a a quasi-common law marriage in which they share a residence and intermingle their lives and sometimes their finances, without being married. Being legally married provides the protection of divorce laws, inheritance laws and rules regarding the distribution of assets for the protection of both partners. If you aren't legally married, you don't have these same protections unless you create them yourself with a cohabitation agreement.
If you decide to write a cohabitation agreement, there are several things the agreement should address:
- The agreement should specify the breakdown of financial responsibility. Will one of you contribute more to the rent or mortgage than the other because you make more? Will one of you pay the power bill and the other the cable bill? Put it all in writing so there is no disagreements later.
- What happens if you break up. If you two are no longer going to live together, who gets to keep the apartment or the house? Does one party have the option to buy out the share of the other party? What happens if he can't afford to do that? What happens if one of you can't afford to carry the lease alone? All of these issues should be addressed in the document.
Getting Help
In order to make sure you cover all the pertinent details in the cohabitation agreement before forming a common law marriage, you should speak with an experienced attorney. Your attorney can help you to make sure you cover all the pertinent points and also that your document is written in such a way that it will be given legal validity in the event of a split.
