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Monday, May 2, 2011

Should I draft or create a Cohabitation Agreement with my partner (Heterosexual or LGBT) in New York? By Brooklyn Divorce Lawyer

Hello, my name is George M. Gilmer, Esq. I am a Matrimonial and Divorce attorney with law offices in Brooklyn, New York. A relationship often starts off in a whirlwind manner.  Emotions are high and love has been considered by many sources to be temporary insanity.  When and if this relationship breaks down, the person you once loved can very easily become your enemy.  The urge for revenge and for blame is high and the feeling of giving too much and not getting enough back permeates the air.

With this flowing emotion, wise people, whether you are a heterosexual couple or LGBT couple, before “shacking up” with someone, it might be wise to enter into an agreement that solidifies the rights and responsibilities of both parties, so if the relationship does break down, the contributions made toward the partnership and the responsibilities flowing therefrom will be recognized by law.

New York State does not recognize common law marriages. On June 24, 2011, however, the Republican-led Senate in New York voted to legalize same-sex marriage, delivering to gay-rights advocates a hard-fought victory.  Marriage gives rise to certain rights for both parties but unmarried cohabitants do not have many of the rights afforded to married couples.  A cohabitation agreement can give rights to unmarried individuals that are analogous to the rights afforded to those that are married.

For example, marital property laws do not apply to unmarried couples, i.e. the laws of equitable distribution.  Thus if one partner in a relationship builds money in a bank account in part due to the support and contributions of another partner, if no joint bank account was created, the partner with the name on the account will be entitled to all of the money in the account without any written agreements to the contrary.  This could be a stinging blow to the person that did not save up, who might be left “high and dry” after the end of a relationship despite making significant contributions to the economic and professional growth of their former partner.

Another example is where a couple may purchase a home.  For various reasons, only one person’s name may be placed on the deed of the property.  In a marriage, if the property was brought during the marriage, then it will be subject to Equitable Distribution laws and the spouse not on the deed will be entitled to a legal determination of his or her share of the property.  In an unmarried situation, the partner in the relationship without the name on the deed, despite making various economic and noneconomic contributions that lead to the purchased of the property, may not be entitled to anything if the relationship ends.

Writing a cohabitation agreement will require you and your partner to talk at length about the issues important to you and to come to a joint understanding. Most importantly, issues of property and money always should be mentioned in these agreements. Don’t get bogged down in such issues such as household chores, cooking and sexual services because a contract involving these issues will most likely (especially one involving sexual favors) not be enforced in a court of law.

It is strongly advised that both sides obtain an experienced lawyer to review the cohabitation agreement. In my opinion, a clause regarding mediation or some other form of alternative dispute resolution should be included in the agreement. If a modification of the agreement, it should be in writing.

If you would like a cohabitation agreement drafted, contact George M. Gilmer, Esq., a Brooklyn, New York Family Law and Matrimonial Attorney.


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