Cohabitation Agreements – “Prenups” for the Non-Married

April 2015

Cohabitation between unmarried couples has not only increased over the last 40 years it is the new normal for those who want to test the waters before making the ultimate plunge into marriage or for those who don’t want the personal and legal commitment that marriage brings. Yet, while setting up a household and creating financial expectations of one another, especially when one person has significantly more wealth than the other, the majority of unmarried partners do not have written agreement.

Why is an Agreement Necessary?

California does not recognize common law marriage, however, most people don’t realize that California does recognize agreements (including oral agreements) between unmarried cohabitants as enforceable contracts. These actions are called “Marvin actions” named after a case involving the actor Lee Marvin. These actions often include requests for continued financial support or a transfer of asset(s) based on the claim that these were promises made while the parties were living together. Cohabitation agreements can provide that neither party receives any support or assets from the other when the relationship ends or it can provide for specific financial arrangements should the relationship end-in exchange both parties waive the right to file a Marvin action.

How to Obtain a Cohabitation Agreement

A cohabitation agreement can be prepared by a family law attorney and both parties should have independent representation.
*Monica Mazzei Potter is a Certified Family Law Specialist and Partner at Sideman & Bancroft, LLP. She specializes is complex high net worth dissolutions and represents clients in pre-marital and cohabitation agreements often including international issues.