Cohabitation Agreements

Kentucky does not recognize common law marriages contracted within this state. Neither does Kentucky recognize same-gender marriages. Many legal rights issues and problems arise when people have significant others or life partners and live together without a valid marriage.

A "common law marriage" is legal in a few states and can exist there when the parties agree to be married to each other and hold themselves out within their community as husband and wife without benefit of a state-issued license. In such instances, a common law marriage which is valid in another state will generally be recognized in Kentucky.

Traditionally, unmarried couples have not enjoyed property rights which resemble those available to married persons. Kentucky defines rights and duties for married couples, but there is no such system for unmarried parties. Generally, if there is no "partnership agreement", you should to protect your rights.

In cohabitation, unlike marriage, there are no automatic incidents of the relationship, including matters about children and property:

  • One unmarried party does not have an automatic right to share in business enterprises, real property or personal property owned or in the possession of the other party.
  • One unmarried party does not have the automatic right to inherit from the other's estate.
  • One unmarried party does not have the right to health insurance coverage on the other's policy (though their children can be covered).
  • One unmarried party is not entitled to make health care decisions on behalf of the other party if incapacitated without a valid Health Care Directive; and so forth.

Domestic Partnership Agreements

Unmarried parties who acquire real estate or personal property together certainly have the right to enter into contracts setting forth their respective interests. Likewise, there is nothing to prevent unmarried parties who have business relationships together from entering into business agreements to govern the operation of those enterprises. The fact that the parties live together is not essential to the validity of such agreements.

 

Cohabitation Agreements

It is possible for unmarried parties to enter into a binding agreement similar to a "prenuptial agreement" setting forth the waiver of future claims to property or even support.

In Kentucky, unmarried domestic partners may enter into an agreement that creates property or support rights which are not based solely on each party's direct financial contribution to a specific asset. If one party makes a significant financial contribution to an asset such as a house while the other party's contribution is not financial (such as being a homemaker), they may make an agreement that creates each party's respective rights and duties.

Today, parties who could marry but who choose to live together without marrying and same-sex cohabitants (who do not have the option of a legal marriage) should consider entering into a written agreement prepared by an attorney which sets out in detail the parties' respective rights and duties on the matters of property (real or personal) and support.

Such an agreement should cover all of the parties' property, including property owned before the relationship began, as well as property accumulated by either party thereafter (either separately or jointly). It is recommended to especially specify who gets to keep what in the event of a breakup.

The parties' agreement should spell out how they will divide day-to-day costs for food, utilities, laundry, housing, etc.

The parties may opt to simply state in their agreement that, if they separate, each of them will have the right to take immediate possession of their respective separate property and that all jointly-owned property will be divided equally. If there is property owned jointly by the parties but not equally, the agreement should specify a method for dividing it.

Including a dispute resolution method such as mediation or arbitration is suggested, in which case the parties would include their agreement to resort to qualified mediator or arbitrator to negotiate a settlement of any disagreements about the disposition of property.

 




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