What is a Cohabitation Agreement?

An Ohio cohabitation agreement is a written contract between two unmarried individuals. Cohabitation agreements are used to define the rights and duties of each individual and outline how joint property will be handled. While the cohabitation agreement can cover many of the same topics as an Ohio antenuptial agreement, an Ohio cohabitation agreement does not need to conform to the same statutory requirements.
Ohio law presumes that any property purchased by cohabitants is owned in equal shares, although the cohabitants may rebut that presumption. A cohabitation agreement may eliminate the presumption or specify the respective ownership interests of the parties in jointly acquired or gifted property. An Ohio cohabitation agreement may also place restrictions on the rights of one party to use or occupy specific property after the relationship ends. The agreement may also allocate debts or obligations of either party to the other.
Cohabitation agreements are not covered by any statute in Ohio and are generally governed by contract law. Courts will intervene to divide cohabitating individuals’ property only if there is a cohabitation agreement. Without an agreement , property is presumed to be joint property and there is no right to partition the property.
Ohio does not have a statutory domestic partnership registry. However, in 2013, the Ohio Supreme Court issued a decision in a negligence case that recognized domestic partnerships. In the case, a gay couple had purchased a house as joint tenants. When they separated, one partner gave the other a choice: If he would quit claim his interest in the house, the other partner would give him $150,000. The partner who had the larger income declined, and refused to contribute to the mortgage, while the claimant made all the payments. The claimant who had given the defendant the choice sought damages for breach of his duty of good faith and fair dealings. The court disagreed, holding that there was no enforceable property agreement because unmarried individuals do not have rights in Ohio to property acquired during their relationship in the absence of an agreement.
A registered domestic partnership may allow for property rights under Ohio law, but the Ohio domestic partnership registry is limited to private employers. The state of Ohio does not offer any provision for registered domestic partners.

Legal Necessity of a Cohabitation Agreement in the State of Ohio

A frequently asked question for unmarried partners is whether they need a living together agreement. Ohio law provides no protections for unmarried couples.
The presumption under Ohio law is that all property is owned by the person whose name is on the title, held in their individual name or held jointly with another. An Ohio court will apply the law and presume that the property was intended to be owned by only one of the partners. If a partner wishes to establish any rights in property that is titled only in another person’s name, it is necessary to have evidence of creditors, public policy, dissipation of other marital estates, care and comfort or other basis to claim relief. The reason for this is that Ohio law is stated to provide sufficient rights to married couples so that upon divorce they are able to have their financial issues resolved by the court applying the law.
An unmarried couple has no right to have a court decide how their relationship is terminated. The parties will be left with the same assumptions that existed before the relationship began. As a result, since all property is presumed to be owned by one person, a living together agreement is essential for an unmarried couple. The parties consider how they intend to develop their relationship during its existence and what is to happen if it terminates. The agreement can include covering issues from the simplest to most complex. Sample agreements are available on the internet.

Important Components of a Cohabitation Agreement

When speaking with potential clients about a cohabitation agreement in Ohio, I discuss in detail what options we have to customize the agreement the way they want it and see if there are any issues we need to be aware of going forward. While each agreement can be different, there are key components I include in all agreements to make sure we have discussed the major provisions. Below are the key elements of a typical cohabitation agreement:
Property Division
We have to address some type of property regime in the agreement. We talk about how we will divide bank accounts, furniture, investments, etc. when the cohabitation ends. It should also explain how the cohabitation agreement will govern the division of the property if one of the parties passes away so that there are no issues with the estate. I also cover how property acquired during the relationship can be handled, such as whether co-titled or titled individually.
Financial Responsibilities
Many creative things can be done with finances in a cohabitation agreement. It can be a good opportunity to protect credit, explain how expenses will be paid during the relationship, say how many bills each partner is responsible for, and talk about what happens to debts if the relationship ends. For example, should both parties be responsible for one-half of a debt, or just the person that incurred it. We also cover what happens if one party supports the other because the other has lost his or her job.
Dispute Resolution
If a dispute arises, how will it be resolved? This is important. You need to think about whether you want to use Mediation, Arbitration, or Litigation. The partners may want to agree that the courts should not be involved at all. In such case, Arbitration or Mediation may be the preferred method for resolving any disputes. It is important to include language in the agreement that states precisely how you intend to resolve any future disputes.
Child Support
If the parties to the agreement have children together, it is important to cover how the parents intend to pay child support and share custody of the children if the relationship ends. Child support and custody should be addressed regardless if the parties are married to each other or not. If the parties have children from different relationships, you may want to use separate "Exhibits" for each of their children. For children from previous relationships, you may want to include language to state that the agreement does not supersede or affect the child support order from a prior relationship.

How to Prepare a Cohabitation Agreement in the State of Ohio

For most cohabitating couples, the cohabitation agreement generated is a generic document that is not tailored for their specific situation. In fact, you may find these agreements available within legal software programs.
Because cohabitating couples do not have the benefit of the spousal protections and benefits contained in a marriage license, they should take the time, without regard for cost, to have a custom drawing agreement tailored to their specific situation. A "one-size-fits-all" agreement may not serve your needs.
An attorney can assist you in drafting a cohabitation agreement by providing the following:
Considering the laws of the State of Ohio, it is likely the attorney will, at a minimum, ask you both to answer the following questions: How long will the agreement be in effect? Will either party have an obligation to support the other if the agreement is terminated? What happens to joint property at the death of either party? What happens if one party stops performing their legally required duties under the agreement? How will this agreement be amended in the future? Should the agreement be recorded with the Recorder in the County where you live?
There are additional questions that may come up, depending on your specific needs. It is important to remember that the attorney’s advice is based upon your stated needs. You are able to negotiate the resulting agreement to the extent you both agree.

Cohabitation Agreements and Their Legal Enforceability in Ohio

For a cohabitation agreement to be legally binding in the state of Ohio, the parties must create it as a written document. Courts will not enforce oral agreements, and from the perspective of your rights and protection, it’s essential that the agreement be properly documented. There are a number of legal issues related to cohabitation agreements that could be very important to your case if ever challenged in court. Just like with a prenuptial or postnuptial agreement, a cohabitation agreement is not allowed to be contrary to public policy. For example, a contract that claims one party will not pay child support obligations is not allowed because child support payments are properly viewed as an obligation that will be decided by the court by the best interest of the child, not necessarily the best interest of the parents. Ohio also generally does not allow cohabitation agreements that include simple waivers of alimony or spousal support payments. Waivers of spousal support can be performed as a part of a divorce decree, often resulting in more enforceability than an agreement created outside of that context, although those outside divorces are still valid with some limitations. Cohabitation agreements can exclude spousal support, but must be sufficiently specific and detailed. They should include details like how long the agreement is valid for , and what happens at the time the relationship ends (assuming not through marriage). If you and your partner want to exclude spousal support through a cohabitation agreement, it is strongly advised that you utilize an attorney. Proper enforcement of the agreement will depend on its specificity regarding duration, circumstances of expiration, and proper notice being given.
Cohabitation agreements should be commendable to both partners and provide a concrete guide of their rights in the relationship. Yet, partners do not always follow the terms, and the other involved party may choose to seek legal action regarding the other’s actions. Most commonly, courts only enforce cohabitation agreements if they are properly documented, as mentioned earlier; waivers of alimony or spousal support are also given broad discretion. Separation agreements have shown the ability to be enforced with wide discretion. Courts have a strong track record of enforcing separation agreements that do not deal with alimony or spousal support or discuss child custody, parenting time or support obligations. Cohabitation agreements should also not be written in a way to restrict each parties’ freedom of action. Courts would likely not enforce an agreement that required one party to obtain the approval of the other to engage in social activities.

Avoiding Common Mistakes

Cohabitation agreements are a fantastic way to put the terms of your relationship in writing. They provide a framework for financial responsibilities, debt obligations and the sharing of assets acquired during the relationship. However, if not created properly, they can set the stage for conflict rather than consistency. Below are some common mistakes when drafting cohabitation agreements and how to avoid them.
Inaccurate Comments and Affidavits
One of the first things we ask when you come in is to see you and your spouse’s financial affidavit. This will state assets, income, liabilities and expenses for both of you. When this form contains inaccurate information, it sets up a problem. It doesn’t reflect the true state of the household. A good attorney will dig and render the truth to get the right figures on the affidavit. In many cases, we have had to send our clients back to produce more documents to get a better picture of the household income. Any attorney can put an agreement together. A good attorney is going to do the research and does not just take what clients give them without digging for the truth.
Not Providing for the Relationship to End
You might think "This is my soulmate, why do we need to provide for the end of the relationship?" Well, first, no one goes into their relationship thinking they want to break up. It is not like a kid with their toy. If it breaks, they leave it on the ground and move on to the next one. Relationships are very complicated and has many layers. These layers are built over a period of time. Just as you gain the layers, you also break them down. When that occurs, you want to make sure you are each protected. Without accounting for what happens in the future if you were to separate, you could be setting yourself up for a disaster.
Getting the Right Terms
Unless you are an attorney, you probably don’t know what kind of terms you should have in a Cohabitation agreement. An Example is: In Ohio, there is no spousal support, but you can ask for a form of alimony in the agreement. If you don’t know that as an attorney, it is going to be hard for you to protect your client. The same goes for other terms such as how the agreement is revoked or what happens to the house when one party moves out. These terms must be stated in the agreement. You cannot put the language in the affidavit. In the future, you will need to refer to your cohabitation agreement; you will never need to refer to the affidavit. Pre-nuptial and Cohabitation Agreements are **contract** language that needs specific clauses.

Cohabitation Agreements and Common Law Marriage

Although there are many similarities between Cohabitation Agreements and Common Law Marriage in Ohio, the differences between these two concepts are worth highlighting. Contrary to Cohabitation Agreements, federally and statewide Ohio courts have not recognized Common Law Marriage. A common myth in Ohio is that long term cohabiting heterosexual couples (that are not married) have the same rights as a married couple. However, in Ohio, there is no such thing as common law marriage and therefore the law does not treat cohabiting same sex or heterosexual couples as married couples.
Although in the past, Ohio recognized common law marriage, but as of October 10, 1991, Ohio has abolished common law marriage. Matter of McCullough, 155 Ohio St. 2d 318, 2003-Ohio-3554. Similarly, many states have abolished common law marriage in favor of formalized marriage licenses.
In order for a couple to be considered common law married, they must meet their states requirements to be considered common law married. In particular, in most states that still recognize common law marriage, the couple must meet the following requirements to be considered common law married:
In addition, under Ohio law, cohabitation is permitted before or during the marriage however, as previously mentioned long term cohabitation does not result in a marriage.
In matters that do not involve the division of property or debt, it is more difficult for parties to establish a common law marriage as there will not be any caselaw references regarding what the law requires one party to prove to establish a common law marriage.
The question of whether an alleged common law marriage is valid or invalid is a question of law to be decided by the judge. In Ohio, there is no statute or case law in Ohio that specifies the amount of time that a cohabiting couple must reside together to be considered common law married. A common argument is that the longer the parties live together, the more intimate the relationship and the more likely the parties intended to be contractually bound to each other in some way. However, as previously discussed, Ohio courts do not recognize this idea.

Ohio Case Studies

The importance of a well-drafted cohabitation agreement in Ohio is illustrated by the following cases:
In Allen v. Becker ( Case No. 96AP-170, Dec. 31, 1996), the Ohio Court of Appeals for the Tenth Appellate District held that a legal cohabitation agreement had to meet the burden of proving that the alleged cohabitation was as of the date of the separation from their purported marriage. A cohabitation agreement in this case had been signed three days after the mother left and thus was insufficient to show that the parties had cohabitated during the union – that is , had lived together with consummation.
In Holzmeyer v. Holzmeyer (Entry filed March 26, 2018), the Court of Appeals of Ohio, Eighth District, at Cuyahoga County, upheld the trial court’s determination to divide stock options, which were not exercised until after the divorce was finalized, in accordance with a cohabitation agreement. The trial court found that the issues raised by the wife occurred intentionally, in bad faith, and in violation of the court’s orders.