Unmarried Couples and Cohabitation Agreement

CohabitationNH Cohabitation Agreements – Many couples who live together for years begin to accumulate real property.  If a breakdown of the relationship occurs as long as the property is in both of the parties’ name, they are both protected.

However, if the property is only in the parties’ name and the relationship breaks down, the partner with no ownership interest may have no rights.

Common Law Marriage Exception

There is a common law marriage exception in New Hampshire law under RSA 457:39 gives a spousal share of the estate of a deceased common law spouse.  In order for the exception to be valid, the couple must cohabitate; acknowledge each other as husband and wife for a period of 3 years until of them dies.  Thereafter, they are deemed to be legally married and are entitled to a spousal share of the estate of the deceased common law spouse.

Cohabitation Agreement

A less tragic solution to a property dilemma could be a cohabitation agreement.   A cohabitation agreement outlines couples’ respective rights to the property of the other.  The parties may promise to share income, debts and property.  The agreement may also be used for the purpose of maintaining separate property.

It is worth taking into consideration if a couple decides to get married after a long period of cohabitation, in August of 2016, in the Matter of Deborah Munson and Coralee Beal, the New Hampshire Supreme Court determined assets that were accumulated prior to marriage may belong to both parties and divided as part of their divorce decree.  The Court added the period of cohabitation to determine that the marriage could be considered “long-term” for purposes of determining a fair division of property and an award of alimony.  Furthermore, the Court ruled premarital cohabitation is “a factor that the court may consider in divorce proceedings when determining whether to depart from the presumption that an equal division is an equitable distribution of property.”  Therefore, a cohabitation agreement could possibly reinforce a court’s determination of property division and alimony.

It is important to consult with an experienced attorney who can guide you on which approach to take. Please call Douglas, Leonard & Garvey to assist you at 1-800-240-1988 or fill out our online contact form.

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