Non-Marital Conjugal Cohabitation Agreements for the Unmarried Couple in Texas

Over the past 6 months I have met with several potential clients who decided to make some major financial decisions with their boyfriend or girlfriend and unfortunately the relationship did not workout.

In one case I met with lady who she and her boyfriend had purchased a house and had a child together. Both were named on the deed. In that case the boyfriend was refusing to help support the child or contribute to any bills related to the house. He was very happy letting his girlfriend support him while he sat at home playing video games. The woman I met with wanted out and wanted to get some orders regarding the child.

In another case a woman again purchased a house with her boyfriend however in that case she was not listed on the deed but had contributed a large amount of money to the house. In this case, he kicked her out of the house and told her not to come back and that she would not see a penny of the money she had paid to the purchase of the house.

In both cases I hoped that there would be enough evidence to support a claim of common law marriage. If there was a common-law marriage that would be the easiest way to untangle the couple from each other financially and otherwise. Unfortunately, aside from them having lived together there was no other evidence. Both woman was adamant in that they had never intended to be married and had never held out to anyone that they were married.

This was disappointing because it meant that things would be more complicated and expensive if we were going to be able to help. Her situation is one the reasons divorce exists. However, divorce is not available to unmarried couples.

In the first scenario, we would be able to help get orders in place in regards to the child. The woman was also protected because she was on the deed however we would have to bring a separate lawsuit in regards to that property. In the second scenario, the woman might be out of luck all together we would have to dig in deeper to see what we could do.

What rights do unmarried couples have?

Both women wanted to know doesn’t living together provide them with any sort of rights or protection? In short, the answer is no.

This is especially true with respect to property acquired during a relationship. Marital property laws and other family laws were designed to protect married couples and do not apply to unmarried couples. This is true no matter how long the relationship was.

Palimony is not a legal concept. Rather, it is a popular term used to describe the division of property or periodic support payments paid to one partner in an unmarried couple by the other after the couple breaks up.

The Texas Family Code does not provide for "palimony.” This means you cannot gain rights under the Texas Family Code because you lived with someone absent a valid marriage.

Can an unmarried couple establish rights as a couple?

However, it is possible to draft an agreement which might provide for some of the things that could be obtained with a valid marriage.

The Texas Family Code Section 1.08 states that:

“A promise or agreement made on consideration of marriage or nonmarital conjugal cohabitation is not enforceable unless the promise or agreement or a memorandum of the promise or agreement is in writing and signed by the person obligated by the promise or agreement.”

The Texas Business Code, allows parties to enter agreements in consideration of "nonmarital conjugal cohabitation". To be enforceable, these contracts or agreements must be:

  1. in writing and
  2. signed by those who are affected by the agreement.

The Texas Legislature specifically stated that this provision was enacted to curb the number of palimony cases entering the family courts.

Oral agreements will likely not be upheld. At least one court has held that an oral agreement is not enforceable, Zaremba v. Cilburn.

Why a Cohabitation Agreement May be a Good Idea

As illustrated in the two examples I gave above when you are living with someone else and are NOT planning to be married sometimes lines blur and the couple starts making financial decisions as if they were married.

Then if the relationship does not work out the couple is left with questions regarding who is responsible for any joint debts and who owns the assets. If not careful someone might be significantly hurt financially.

The problem is partly because the characterization of property acquired by unmarried cohabitants is less clear than that of married couples. Married couple’s ownership of property is governed by marital and community property laws.

Under community property laws it does not matter whose name is on the property in most cases it is still owed by both parties in marital relationship. This is not true for an unmarried couple.

One solution is a written cohabitation agreement that is signed and meets all the formalities of a regular contract. A cohabitation agreement allows an unmarried couple to legally spell out their rights and obligations toward each other.

Cohabitation agreements can be useful when:

  1. one of the parties dies
  2. if the cohabitants decide to end their relationship
  3. in governing the affairs of the couple while living together

Generally, a cohabitation can be used to:

  1. State the couple is not married and should not be considered married
  2. How expenses are to be paid
  3. Who is responsible for what during the living arrangement?
  4. Who pays the lease or the mortgage?
  5. Will the couple share any financial accounts such as a joint checking account?
  6. Identifies assets and debts, and who owns them
  7. What property is separate property or jointly owned?
  8. how property will be distributed, should the couple split up
  9. Support Payments

What about Medical Decisions and Estate Planning?

Couples also sometimes have concerns regarding estate planning and medical care. Generally, someone who lives with another is not considered an heir under the law and they do not have any rights to make medical decisions the way a legal spouse would.

If this is a concern, then you may want to consider in addition to a cohabitation agreement obtaining:

  1. estate planning and
  2. power of attorneys

Defenses to Cohabitation Agreements

The defenses to cohabitation agreements are those available under general contract law rather than the limited defenses available against premarital and postmarital agreements under the Family Code.

Common law defenses include:

  1. fraud,
  2. repudiation,
  3. duress,
  4. mistake,
  5. unconscionability and
  6. ratification.

If you are considering moving in together with your Paramore or loved one, then you should think seriously about entering into a cohabitation agreement to protect yourself and eliminate uncertainty regarding your rights and duties to each other.A cohabitation can also provide a measure of security in the event the relationship terminates.

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Other Articles you may be interested in:

  1. Common Law Marriage and Texas Divorce Guide
  2. How to get a Common Law Divorce in Spring, Texas
  3. Am I Married? - Marital Status in Texas
  4. Can I sue my spouse's mistress in Texas?
  5. When is, Cheating Considered Adultery in a Texas Divorce?
  6. 6 things You Need to Know Before You File for Divorce in Texas

Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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