This chapter discusses cohabitation agreements and premarital agreements. It defines cohabitation and explains that cohabiting partners can use documents like powers of attorney, wills, and cohabitation agreements to define their rights. A cohabitation agreement is a contract between unmarried partners living together that defines their intentions and obligations. If the relationship ends, cohabiting partners may seek equitable relief from courts like implied contracts or constructive trusts. The chapter also describes premarital agreements, their legal requirements, common provisions, and trends in their enforceability. It outlines the paralegal's potential roles regarding related cases.

1. Chapter 2:
Cohabitation and Premarital
12
Agreements
Family Law for the Paralegal
2nd Edition
Wilson
Class Name
Instructor Name
Date, Semester

2. LEARNING OBJECTIVES
After this lecture, you should be able to:
2.1 Define cohabitation.
12
Identify various kinds of documents cohabiting
2.2 partners can use to create and protect their
rights.
2.3 Explain what a cohabitation agreement is.
Class Name
Instructor Name
Date, Semester
Cont.

3. LEARNING OBJECTIVES
After this lecture, you should be able to:
2.4
Identify forms of relief potentially available to
cohabiting partners if their relationship
12
terminates.
Describe the nature and purpose of a premarital
2.5 agreement.
Identify commonly accepted legal requirements
2.6 for a valid premarital agreement.
Class Name
Instructor Name
Date, Semester
Cont.

4. LEARNING OBJECTIVES
After this lecture, you should be able to:
2.7 List the kinds of provisions a basic premarital 12
agreement contains.
Identify trends regarding the enforceability of
2.8 premarital agreements.
Describe the paralegal’s potential role with
2.9 respect to cases involving cohabitation and
premarital agreements.
Class Name
Instructor Name
Date, Semester

5. Learning Objective
After this lecture, you should be able to:
2.1 Define cohabitation.

6. 2.1 What is Cohabitation?
• Cohabitation is broadly defined as two
unmarried persons living together commonly in
an intimate relationship.
6

7. How Does it Differ From
2.1 Marriage?
• It differs from marriage in several respects:
– Parties do not have to satisfy any legal requirements to
cohabit.
– Cohabitation can be terminated without legal process.
– There is no presumption of parentage when a child is
born to a female partner in a cohabiting couple (and
hence no duty of child support or right to visitation).
– If the relationship terminates, division of property may be
based on an agreement of the parties or based on
equitable relief provided by the courts.
– Following termination, absent an agreement to the
contrary, there is no duty of support.
7

8. Learning Objective
After this lecture, you should be able to:
Identify various kinds of
documents cohabiting partners
2.2 can use to create and protect
their rights.

9. Documents to Create and Protect
2.2 Their Rights
• What are some of the documents cohabiting
partners may use to create and protect their rights?
– Health care proxies
– Durable powers of attorney
– Wills
– Deeds reflecting joint ownership of property with rights of
survivorship
– Life insurance policies
– Trusts
– Beneficiary designations on retirement accounts etc.
– Joint partnership agreements
– Cohabitation agreements
9

10. Learning Objective
After this lecture, you should be able to:
Explain what a cohabitation
2.3 agreement is.

11. 2.3 Cohabitation Agreement
• A cohabitation agreement is an agreement between
two unmarried individuals who live or intend to live
together, defining their intentions, rights, and
obligations with respect to one another while living
together and upon termination of their relationship.
• A cohabitation agreement is a contract and the sole
consideration for the agreement must not be
“meretricious sex” (prostitution or sexual relations
outside of marriage).
• Cohabitation agreements allow parties to privately
identify, negotiate, and reach agreement with
respect to their expectations, both financial and
personal.
11

12. 2.3 Cohabitation Agreement (con’t)
• Cohabitation agreements are similar to premarital
agreements in some respects but are usually not as
comprehensive.
• See Paralegal Application 2.1 on pages 27 and 28 of the
text for a description of common provisions of
cohabitation agreements
• Cohabitation agreements may include provisions about
expectations of the parties regarding their relationship but
an individual provision of a cohabitation agreement (or
an entire agreement) may be held unenforceable if it
violates a law, constitutional right, or strong public policy
(such as a provision that a party who gets pregnant
agrees to have an abortion).
12

13. Learning Objective
After this lecture, you should be able to:
Identify forms of relief potentially
2.4 available to cohabiting partners
if their relationship terminates.

14. 2.4 Forms of Relief
• For background, see Case 2.1 Marvin v. Marvin
(1976) on pages 29-32 of the text which popularized
the term “palimony” = a court-ordered allowance
paid by one cohabitant to another after their
relationship terminates.
• Without abandoning the strong public policy
favoring marriage, the Marvin court endorsed the
now widely held principle that when the facts
warrant it, the courts should fashion appropriate
equitable remedies for cohabitants to avoid
hardship or injustice.
14

15. Major Legal Basis for Granting
2.4 Relief
• See Exhibit 2.2 on pages 33-35 of the text.
• Express contract: The parties articulate an
agreement.
• Implied-in-fact contract: The court infers the parties’
intentions from their conduct and the surrounding
facts.
• Quasi-contract/Implied-in-law contract: The court
creates the contract to avoid unjust enrichment of
one party at the expense of the other (based on
quantum meruit).
15

16. Major Legal Basis for Granting
2.4 Relief
• Purchase money/Implied/Resulting trust: The court
creates a trust when one party contributes the funds for
purchase of a property and title is held in the other party’s
name.
• Constructive trust: The court imposes a trust on an asset of
a party who wrongfully obtained the asset. The trust is for
the benefit of the wronged party.
• Implied partnership/Joint venture: The court creates a
partnership based on the conduct of the parties and
distributes the assets and liabilities of the partnership
based on principles of fairness.
• Putative spouse doctrine: The court provides relief to a
person who reasonably believed he or she entered a
valid marriage.
16

17. Learning Objective
After this lecture, you should be able to:
Describe the nature and purpose
2.5 of a premarital agreement.

18. 2.5 Premarital Agreement
• A premarital agreement is an agreement made by two
persons about to be married defining for themselves their
respective rights, duties, and responsibilities in the event
their marriage terminates by death, annulment,
separation, or divorce.
• See Case 2.2 Posner v.Posner (1970) on pages 36 and 37
of the text for context. “With divorce such a
commonplace fact of life, it is fair to assume that many
prospective marriage partners…might want to consider
and discuss…and agree upon…the disposition of their
property and …alimony rights…in the event their
marriage, despite their best efforts should fail….A
tendency to recognize this change in public policy…is
clearly discernible.”
18

19. 2.5 Premarital vs. Postmarital
• Postmarital agreements: Postmarital agreements are
agreements made by two people already married to
each other who want both to continue their marriage
and also define their respective rights upon
separation, divorce, or death of one of the spouses
(banned in a small minority of states).
• Separation agreements: Separation agreements are
agreements made between spouses in anticipation
of a divorce or legal separation, concerning the
terms of the divorce or legal separation and any
continuing obligations to each other.
19

20. Learning Objective
After this lecture, you should be able to:
Identify commonly accepted
2.6 legal requirements for a valid
premarital agreement.

21. Requirements for Premarital
2.6 Agreements
• The requirements for a valid contract
• The requirement of procedural fairness
• The requirement of substantive fairness
21

22. 2.6 Requirements for Valid Contract
• There must be an offer.
• The offer must be accepted (generally in writing).
• The parties must have the legal capacity to contract
in terms of age and mental competence. (An
affidavit of competency may be warranted.)
• The subject matter of the contract must be legal.
• There must be consideration for the contract (a
bargained-for exchange of something of value).
• There must be a “meeting of the minds” (a shared
understanding of the terms and conditions of the
contract).
22

23. Requirements of Procedural
2.6 Fairness
• The requirement of procedural fairness refers to fairness in the
negotiation and execution of the agreement.
• Examples of procedural fairness include the following:
– Representation by independent counsel (One attorney cannot
reasonably represent the interests of both parties.)
– Adequate disclosure of assets and liabilities (Did the parties
have, or should they have had, knowledge of each other’s
worth such that each could make an informed decision?)
– Sufficient time to negotiate and review the agreement prior to
execution (The states vary with respect to what constitutes an
appropriate time.)
– Absence of fraud, duress, or undue influence in the
negotiation and execution of the agreement
23

24. Requirement of Substantive
2.6 Fairness
• The requirement of substantive fairness refers to
fairness in the specific terms of an agreement.
• Examples:
– Is the division of property per se unfair or unconscionable
– Is an agreement to waive alimony/ spousal support fair
• The states vary with respect to whether fairness will
be measured only at the time of execution or also at
the time of performance (the “second look”
approach).
• Most courts will not enforce the agreement if its terms
are so unfair to one of the parties that they are
unconscionable (they “shock the conscience of the
court).
24

25. Learning Objective
After this lecture, you should be able to:
List the kinds of provisions a
2.7 basic premarital agreement
contains.

26. Provisions In A Premarital
2.7 Agreement
• Agreements vary in length and formality but generally they
include the following basic components:
– A Preamble (introductory segment)
– A definition of separate property and how it will be treated
– A definition of marital property and how it will be treated
– A statement of the rights each party will have to spousal
support if the marriage terminates in a separation or divorce
or a waiver of those rights
– A provision relating to death benefits or a waiver thereof
– General provisions (severability, governing law, etc.)
– Schedules of assets and liabilities (may be attached as Exhibits)
• See Exhibit 2.3 Sample Premarital Agreement on pages 45-53
of the text for a model agreement.
26

27. “Red Flags” in Premarital
2.7 Agreement
• The parties cannot agree to engage in criminal activity.
• Although they may include child-related provisions, the parties
may not bargain away their children’s rights to child custody
and support.
• They should be advised not to include terms that tread on
constitutional rights (to have and raise children, to freedom of
religion, etc.) that may taint the entire agreement.
• They may not agree to prosecute or not defend a divorce
action.
• As non-spouses, they may not waive ERISA governed pension
rights in the agreement
27

28. Learning Objective
After this lecture, you should be able to:
Identify trends regarding the
2.8 enforceability of premarital
agreements.

29. Three Primary Approaches To Enforceability
2.8 Of Premarital Agreements
• The Uniform Premarital Agreement Act (UPAA) approach
(adopted in whole or in part in about half the states) is
designed to create uniformity and increased enforcement of
premarital agreements through application of ordinary
contract principles.
• The UPAA approach generally favors enforcement unless the
party against whom enforcement is sought did not execute the
agreement voluntarily OR the agreement was unconscionable
when it was executed AND before execution, the party against
whom enforcement is sought was not provided fair and
reasonable disclosure, did not waive in writing such disclosure,
and could not reasonably have had adequate knowledge of
the property and financial obligations of the other party.
29

30. Enforceability of Premarital
2.8 Agreements
• The traditional fairness approach treats premarital agreements
as contractual agreements between people who bear a
special fiduciary relationship to each other and therefore holds
them to a higher standard than contracts between strangers
dealing at arm’s length.
• This is essentially a fairness approach. Several states have
adopted the “second look” or “second glance” doctrine to
determine if the terms of an agreement that may have been
fair at the time of execution (when the parties executed the
agreement) remain fair at the time of performance (when the
parties are getting divorced and the court is being asked to
actually enforce the terms).
30

31. Enforceability of Premarital
2.8 Agreements
• The contemporary freedom to contract approach
treats premarital agreements as basic contracts.
People are free to make “bad bargains” and a
person cannot avoid performance of a contract
simply because it seems unfair, unreasonable, or to
his or her disadvantage. Absent fraud,
misrepresentation, or duress, agreements will be
enforced unless enforcement will bring about an
unconscionable result.
• See Case 2.3 Simeone v. Simeone (1990) on pages
56-57 of the text for an example of a case in which
the court applied this approach.
31

32. Learning Objective
After this lecture, you should be able to:
Describe the paralegal’s
potential role with respect to
2.9 cases involving cohabitation
and premarital agreements.

33. 2.9 Paralegal’s Role
• The paralegal’s role will largely depend on whether
the case involves negotiation and execution or
enforcement of an agreement.
• Typical tasks may include:
– Participating in client meetings and taking notes
– Gathering necessary information and documents
– Researching governing law
– Researching forms of agreements
– Drafting and reviewing agreements
– Preparing related correspondence
– Making arrangements for obtaining affidavits of competency
– Drafting discovery requests
– Preparing exhibits for use in negotiation, at trial, etc.
33

34. 2.9 Paralegal’s Role
• For more detail on specific tasks the paralegal may
perform, see:
• Paralegal Application 2.2 Gathering Information in a
Cohabitation Case on pages 32 and 33 of the text
• Paralegal Application 2.5 In Anticipation of an
Agreement – Tasks for the Attorney and the
Paralegal on page 43
• Paralegal Application 2.7 Information Gathering
Needs If a Premarital Agreement is Challenged in a
“Second Look” Jurisdiction – Tasks for a Paralegal on
page 55.
34

35. Chapter Summary
2.1 Define cohabitation.
12
Identify various kinds of documents cohabiting
2.2 partners can use to create and protect their
rights.
2.3 Explain what a cohabitation agreement is.
Class Name
Instructor Name
Date, Semester
Cont.
35

36. Chapter Summary
2.4
Identify forms of relief potentially available to
cohabiting partners if their relationship
12
terminates.
Describe the nature and purpose of a premarital
2.5 agreement.
Identify commonly accepted legal requirements
2.6 for a valid premarital agreement.
Class Name
Instructor Name
Date, Semester
Cont.

37. Chapter Summary
2.7
Identify forms of relief potentially available to
cohabiting partners if their relationship
12
terminates.
Describe the nature and purpose of a premarital
2.8 agreement.
Identify commonly accepted legal requirements
2.9 for a valid premarital agreement.
Class Name
Instructor Name
Date, Semester