Are you married? Do you want to be married? More and more people are saying no to those two questions. The National Center for Family & Marriage Research reports that marriage rates have declined by almost 60 percent since 1970. CDC national health statistics reports highlight a steady decline of marriage rates over that 40-year period from a high in 1970 of 76.5 marriages per year per 1,000 unmarried women to a low in 2010 of 31 marriages per year for every 1,000 unmarried women.
With the decline in marriage rates, study after study shows unmarried cohabitation has skyrocketed. The CDC reports that just 41.5 percent of women between the ages of 15 and 44 are currently married and in that age group 38.2 percent of women have never been married. The median age at first marriage has risen to 25.8 for women and 28.3 for men. Of those women currently in a union, 27 percent are cohabiting.
I point out these statistics to say two things: your children are not as unusual as you think and cohabitation agreements should be in high demand, particularly in Texas. Why? Because Texas recognizes common law marriage and if you live with someone in Texas, you are only a few sentences and witnesses away from being married.
Cohabitation can slip off the edge and into marriage so easily. Think about it. With the ever increasing tendency of millennials to live life in full view of the world on social media, a couple of sentences typed on an emotional roller coaster ride of joy, sorrow, manipulation or desperation is all it takes to irrevocably alter your future options for exit. The loss of a job or the opportunity to save a few dollars on taxes, health insurance or car insurance can entice a couple into representing to the world (read IRS or insurance company) that they are married. Imagine the courts visceral response when someone testifies that, “Yes, I benefitted financially from that fraudulent representation, but it was a lie. I never really agreed to be married and I swear I’m not lying now.” How many courts do you know that want to be asked to believe and bail out a self-acknowledged manipulative liar? I don’t know one.
Further, as I discussed last issue with the U.S. Supreme Court’s opinion in Obergefell v. Hodges, same-sex couples are well on the way to having their living arrangements, agreements and civil unions becoming common law marriages.
Though a cohabitation agreement is not an inoculation and it may not be enforced in a fact specific challenge, depending on how it is constructed, it can be a formidable barrier and buttress, insurmountable except in extraordinary circumstances. A cohabitation agreement can mark a point in time where both parties acknowledge that “as of this date” we are not married. It can affirmatively establish that the parties have never previously agreed to be married. It can provide that certain future acts the parties may engage in are not intended to be evidence that they have agreed to be married. They can acknowledge property rights or lack thereof. They can include the financial agreements of the parties, provisions regarding how the agreement may be terminated and what happens in the event of termination. Each of those can be important.
Roommate agreements have even made their way into sitcoms. Sheldon Cooper on the “Big Bang Theory” has a roommate agreement you might want to check out for its more novel provisions. Don’t leave out his Paragraph 9: Miscellaneous. “The apartment flag is adorned with a standing golden lion, on sky-blue background. It must not hang flying, unless the apartment is in danger” which he also supplies in German. Other interesting provisions to consider can be found at http://ba-zinga.livejournal.com/1131.html.
In Texas, cohabitation agreements aren’t a joke. They are real and if they are drafted well and if parties don’t abrogate them, they can save a lot of money and worry. My dad always said, “Good fences make good neighbors.” Dennis A. Fuller