Here are some basic tips to keep in mind as you prepare a living together agreement.
1. Talk it out and reach an understanding. Before you can prepare a written agreement covering ownership of your property, the two of you must agree on how you will conduct your financial affairs. This is especially true if one of you makes sacrifices for the relationship, such as moving a long distance or giving up a job to care for small children. How you reach an understanding about money and property issues is up to you.
Many people find that creating a contract forces them to deal with the very guts of their relationship. This is a healthy thing to do now and then—but it can also be trying. Take your time; don’t expect to finish in an evening. A good contract often involves compromise and accommodation. Preparing your contract should be an affirmative act, but it’s up to you to make it so. If you get bogged down in trading this for that and wonder why you’re dealing with all of this legal mumbo-jumbo, take a break and get back to it when you’re both feeling more cheerful.
2. Cover the basics—property and money. A living together contract can be comprehensive, covering every aspect of your relationship, or it can be specific, covering only your new car purchase. Living together contracts can include a wide variety of economic arrangements. You can keep all property separate, or agree that what belongs to one belongs to both. Or perhaps your agreement will be somewhere in between—such as keeping property brought into the relationship separate, but agreeing to share expenses equally and make joint purchases after you start living together. But regardless of how detailed your contract is or how much you decide to include, you must deal with two basic issues: money and property.
3. Don’t try to cover everything in one contract. Relationships and people are complicated. If you try to cover too much ground in one contract, you’ll get bogged down and never figure it all out. It’s often better to have several smaller agreements covering specific issues. For example, your property agreement should be separate from whatever agreement you have to support a partner who’s in school. Your agreement on sharing housing costs and ownership should also be separate.
4. Don’t get personal. Agreements between unmarried partners are generally enforceable to the extent they cover property, payment for services (excluding sex), or payment in exchange for a a person giving something up, such as a job or a home. A court is unlikely to enforce an agreement covering nonmonetary issues of a personal nature, such as who will do the dishes and who will walk the dog. Obviously, you need to be clear with your partner on things such as housecleaning and cooking. Just don’t mix up these day-to-day issues with the bigger legal issues of living together.
5. Don’t mention sex. A living together agreement that is explicitly based on sexual services performed by one partner—even a reference somewhere in the agreement to the fact that the two of you are having sex—may be ruled invalid if you end up in court. A living together contract that is explicitly based on sexual services performed by one partner may be ruled invalid if you end up in court. Explicit does not mean you used sexually explicit language in your agreement. It means that you made reference somewhere in your agreement to the fact that the two of you are having sex. The courts are very sensitive to any implication that they are legitimizing any act of prostitution (what is sometimes called “meretricious consideration”). If a court can imply from the wording of your contract that either party agreed to perform any sexual acts in order to receive a benefit from the contract, it may not be enforced. Even referring to one’s partner as a “lover” has been held sufficient grounds to throw out a living together contract.
6. Don’t prepare a living together agreement about sharing property if one or both of you are married to someone else. In many states, if the partner who is still married is permanently separated from his or her spouse, it may be possible to create a legally valid living together contract to share property. Unfortunately, however, little is certain in this legal gray area where there are few court rulings. Therefore, if one of you is still married to someone else, it’s best to agree in writing to keep all your property separate until the divorce is final. Then you can write a new agreement, pooling your property if you both wish to do so.
7. Get legal advice before signing an agreement if a lot of money or property or complicated estate planning is involved. This is just common sense—particularly if one partner has substantially more assets than the other. Nolo's Lawyer Directory lists local attorneys who can help.
8. Get legal help if bargaining power isn’t equal. A living together contract might not be enforced if a judge concludes that one person has taken unfair advantage of the other. For example, a court is unlikely to uphold a one-sided living together contract between an experienced lawyer and an unsophisticated, but wealthy, 19-year-old who just moved to America and speaks little English, under which the immigrant agrees to support the lawyer.
9. Get legal help if you live in Illinois. In Illinois, it’s doubtful that any living together contract is enforceable, because courts in Illinois remain an exception to the general acceptance of contract rights for unmarried couples. You may be able to create a legal living together contract in Illinois by stating, in writing, that your agreement is simply a contract to share the ownership of certain property and has nothing to do with your personal relationship. See a lawyer for advice.
10. Agree in advance to mediate disputes that may arise over your agreement. We recommend mediation because it is cheaper, faster, and usually less painful than litigation. All of the sample living together agreements included here have a general clause stating that you agree to bring in a third party to mediate any dispute that may arise out of the contract. The same clause provides that one partner may request formal arbitration should mediation prove unsuccessful.
To find more information on creating a living together agreement, as well as templates that you can use to create your own, see Nolo's book, Living Together: A Legal Guide for Unmarried Couples.