The Legal Side of Love

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What to do, know and sign before you move in together.

Whether you're shacking up as a precursor to getting married; feel like it's the right step for now; or throwing in together to save on rent money (not recommended), there are plenty of articles written to help you make the transition. Some are quizzes to ascertain your readiness, others give pointers on how to break the news to your fundamentalist evangelical family and more will advise you on how to handle the inevitable challenges that come with sharing a bathroom and fitting his Barcalounger into your mid-century modern decor. But, even though you're not registering for a marriage license or changing your name—or perhaps, because you're not—there's one more important item to deal with: the legalities of co-mingling your lives for love.

If moving in together is a conscious objection to having the government involved in your union, the thought of contracts and judges may be particularly irksome. But for better or worse, the institution of marriage has laws that govern things like property rights if the couple splits. No matter how committed your bodies, hearts and souls are, if you're living together as romantic partners, to the State, you might as well be roommates. In divorce proceedings, the court is apt to assume equal entitlement—or liability—for both partners, but if you separate having never signed a marriage certificate or a contract, it doesn't matter which assets you mixed or didn't, it's one person's word against another.

Be smart

There are simple ways to protect the basics—housing and credit, for example—that don't require a notary public. If you're renting, make sure both of your names are on the lease. That way, no one can be kicked out—you both have equal right to be in the apartment. It's also important for times when you need proof of address, like applying for a driver's license or verifying eligibility for in-state tuition. Of course, it also means that either one of you can be held financially liable for the place, regardless of who is or isn't ponying up their share.

If you're buying, both of your names should be on the deed, no matter who makes the down payment. If one person is contributing more, make sure the percentages are in writing, and that the deed is issued as a Tenants in Common deed. If you split and sell the property, each person gets back the same percentage they put in. Be careful if your shaky credit requires him to be on the deed alone. If you pay part or all of the down payment, it will be very difficult to get it back if things go awry. Consult a lawyer to help you figure out your options.

Many couples alternate bills—he pays electric, you pay gas—and some create a joint checking that they use for shared expenses. Obviously, if he has trouble paying bills on time—whether he has money issues or just forgets—keep your name off of them them so your credit stays clean. But credit issues aside, there are certain accounts unmarried couples should always keep separate: your cell phone, credit card, savings accounts, student loans and business expenses. And think twice about car leases.

“It's impossible [to get off car leases],” said Blake, 33, who ended an engagement with her fiance. “You have to refinance, and it would have cost us $14,000 to get off each other's [car] leases. We stayed on and luckily, we're not the kind of people who who default on things. But a few months ago I paid one day after the “suggested due date” and I was freaking out—What if I get a late statement? What if he gets a late statement? I love this car, but I swear, I'm going to have a party when I turn it in, because until then—on paper—I am still bound to him. Being on a car lease is more binding than marriage.”

Sign on the dotted line

No one dreams of an anniversary filled with roses and contracts. It's not romantic, but a cohabitation agreement now prevents a Wapner-style he said/she said smackdown later. That said, this should be a joint undertaking, something the two of you hash out together. Springing legal papers on someone is jarring, and talking through these issues is a chance for both of you to express desires and concerns and even get to know each other better.

The agreement doesn't need to be complicated. In fact, the simpler the better. Make sure it's clear that both people will leave with all the personal property they brought, and specify who gets the house, the dog, etc. If you have lots of complicating factors—kids, large debts or assets—make separate contracts for each issue, rather than trying to create one giant document. And if anything is confusing, get help from a lawyer.

While decisions themselves may be complex, composing the document is easy. You can find forms online, but there's no harm in drawing one up yourself. Nothing is iron-clad, but most small claims courts will uphold any document they believe was signed in good faith—even if it's crayon on a placemat.

But whatever issue the agreement hashes out or how it's composed, don't mention—or even allude to—sex. Courts get touchy when you use language that might be seen as legitimizing prostitution, and if your contract states that you pay the electric bill and he flips your switch a minimum of three times a week, a judge is likely to toss the whole thing out. One couple had their case tossed out because they referred to each other as “lovers.” It's best to keep non-monetary agreements—how many nights his drunk best friend can crash on your couch, who scrubs the toilet—out of it as well.

Unfortunately, there's bad news for residents of Illinois, Georgia and Louisiana: In those states, living together is still considered “immoral” and because of that, a couple can't create a contract defining the terms. Things may be getting better in Illinois, though, since one court decided that contracts that don't resemble marriage claims and aren't based solely on living together can be enforced. So if you're trying to do this in The Prairie State, see a lawyer. If you're trying to do this in Georgia or Louisiana, well, you might as well give it a go, since laws could change before it becomes an issue, but know that the document may not hold up in court.

A word about common-law marriages

Most states have abolished common law marriage, and even in the ones that have statutes (which, at the time of writing are Alabama, Colorado, the District of Columbia, Iowa, Kansas, Minnesota, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas and Utah), simply living together for an extended period of time isn't enough to get you declared husband and wife. In most cases, you have “behave” as a married couple, using the same last name, for instance.

Doom and gloom aside, plenty of couples make it (and FYI, should you decide to tie the knot, your cohabitation agreement becomes void, unless you signed it shortly before marrying), so all your efforts may be for naught. So look at this as the first of the tough conversations you'll have as live-in partners. And after you negotiate this, that cap-off-the-toothpaste thing will be a breeze.

This article was originally published at . Reprinted with permission from the author.