Drafting a Cohabitation Agreement

New York gives unmarried couples almost none of the protections it gives spouses. There is no common-law marriage for couples who live together in this state; the Legislature abolished it in 1933, and Domestic Relations Law § 11 now requires a solemnized ceremony. Without a marriage, there is no equitable distribution under Domestic Relations Law § 236(B), no spousal maintenance, no elective share under EPTL § 5-1.1-A, and no intestate inheritance under EPTL § 4-1.1. A couple can share a home, a mortgage, and a decade of joint finances and still be legal strangers to each other in the eyes of the law.

A cohabitation agreement fills that gap. It is a private contract in which two unmarried partners set out who owns what, who pays for what, and what happens to shared assets if the relationship ends or one partner dies. This page explains how New York courts treat these agreements, what the agreement can and cannot do, and how we draft one that will hold up.

The Legal Foundation: Morone v. Morone and Express Contracts

The controlling case is Morone v. Morone, 50 N.Y.2d 481 (1980). The Court of Appeals held that an express contract between unmarried partners living together is enforceable like any other contract, so long as sexual relations are not the consideration for it. The Court refused, however, to recognize an implied contract or an implied partnership arising from the fact of cohabitation alone. In the Court's words, the relationship itself is too ambiguous to let a judge infer what the parties intended.

The practical result is stark. A partner who spent fifteen years contributing to a household and a business, with nothing in writing, will often recover nothing. A partner with a signed agreement has a breach-of-contract claim under CPLR § 213(2), with a six-year limitations period, and can ask for money damages or specific performance of a property transfer.

Two later decisions shape how we draft. In McCall v. Frampton, 81 A.D.2d 607 (2d Dep't 1981), the court refused to enforce an agreement it found to be grounded in an illicit relationship. In Dee v. Rakower, 112 A.D.3d 204 (2d Dep't 2013), the court allowed a former partner's contract claim to proceed where she alleged an express promise to share assets in exchange for her leaving her job to raise the couple's children. The lesson: recite lawful, concrete consideration, such as financial contributions, household labor, and mutual promises about property, and say nothing that ties the bargain to the intimate relationship.

Formalities: Getting the Agreement Into Enforceable Form

Several statutes govern form. Each one is a trap if ignored.

• General Obligations Law § 5-701(a)(1): Any agreement that by its terms cannot be performed within one year must be in a writing signed by the party to be charged. A cohabitation agreement almost always runs longer than a year, so an oral agreement is at risk from the start.
• General Obligations Law § 5-703: Any contract creating or transferring an interest in real property must be in writing and subscribed by the party granting the interest. If the agreement gives one partner a share of a home titled in the other's name, this section applies.
• Real Property Law § 309-a: If you intend to record any part of the agreement, or a memorandum of it, against title to real property, the signatures must be acknowledged before a notary in the statutory form.
• Domestic Relations Law § 236(B)(3): This section governs agreements between spouses and requires them to be in writing, subscribed, and acknowledged with the same formality as a deed. In Matisoff v. Dobi, 90 N.Y.2d 127 (1997), the Court of Appeals voided an unacknowledged agreement between spouses even though neither party disputed signing it. A cohabitation agreement between unmarried partners is not subject to § 236(B)(3). But if the couple later marries and wants the agreement to continue governing their property, a court may treat it as a prenuptial agreement and demand § 236(B)(3) compliance.

For these reasons we execute every cohabitation agreement in writing, signed by both partners, with acknowledgments before a notary in the form required by Real Property Law § 309-a. We also include a clause stating whether the agreement survives a later marriage. If the partners want it to survive, we build it to satisfy § 236(B)(3) from the outset, which avoids a second round of drafting and the risk that a later court applies the rules in a challenge to the agreement as a prenuptial agreement.

What a New York Cohabitation Agreement Can Cover

The Shared Home

Real property is where most disputes arise. Under Real Property Law § 240-c, a deed to two or more people who are not married creates a tenancy in common unless the deed expressly declares a joint tenancy. Tenants in common are presumed to hold equal shares regardless of who paid what. If the relationship ends and the partners cannot agree, either one can bring a partition action under RPAPL § 901, and the court will order a sale and divide the proceeds, with litigation over credits for unequal contributions.

A worked example shows the difference. Suppose Partner A and Partner B buy a house for $600,000. A contributes $90,000 toward the down payment and B contributes $30,000. Both sign the mortgage and both are on the deed with no mention of joint tenancy. Without an agreement, the deed presumes 50/50 ownership. A must sue to recover the extra $60,000 and will spend legal fees proving the source of funds years after the fact.

With an agreement, the outcome is set in advance. The clause might read: on sale or separation, net proceeds after mortgage payoff and closing costs are first applied to repay each partner's documented down payment, and the balance is divided equally. Or the partners may fix ownership at 75 percent and 25 percent of equity, matching their contributions. The agreement should also address:

• Buyout mechanics: Which partner has the right to stay, how the home is valued (typically a licensed appraiser chosen jointly, with a second appraisal if the first is disputed by more than 5 percent), and how long the staying partner has to refinance and remove the other from the mortgage. We commonly use 120 days, after which the property is listed for sale.
• Capital improvements: Whether a partner who pays for a new roof or kitchen receives a credit, and how that credit is calculated.
• A home owned by one partner: If B moves into A's house, the agreement should state either that B acquires no interest regardless of contributions, or that B earns a defined interest, for example 1 percent of equity per year of contributing to the mortgage, capped at a stated figure.

Household Expenses and Accounts

The agreement should identify which expenses are shared, in what proportion, and through what account. A common structure: each partner deposits a percentage of net income into a joint account each month, and rent or mortgage, utilities, groceries, and insurance are paid from it. Everything else stays separate. The agreement should state that contributions to the joint account do not create an ownership interest in the other partner's separate assets.

Debts

Cohabitation does not make one partner liable for the other's debts, but joint accounts, co-signed loans, and authorized-user credit cards blur the line. The agreement should list existing debts, state that each partner remains solely responsible for debt in his or her own name, and address what happens to joint debt on separation. A typical clause allocates joint credit card balances in the same proportion as income contributions and requires closure of joint cards within 30 days of written notice of separation.

Support Between Partners

New York has no statutory support obligation between unmarried partners. If one partner leaves a career to manage the household or raise children, the agreement can create a contractual support obligation: a lump sum, or monthly payments for a fixed term, triggered by separation. Because this is contract rather than maintenance, a court will enforce it as written and will not modify it for changed circumstances unless the agreement says so. We draft these provisions with exact dollar figures, a defined trigger event, and a clear end date.

Personal Property and Pets

The agreement should list significant items brought into the relationship and state how jointly acquired items will be divided. Alternating selection from a jointly prepared inventory works well for furniture. For companion animals, note that the best-interest standard in Domestic Relations Law § 236(B)(5)(d)(15) applies only in divorce. Unmarried partners must rely on their contract, which should name who keeps the animal and who pays veterinary costs.

Separation Logistics

The agreement should set out a timeline. For example: either partner may end the relationship by written notice; the departing partner has 60 days to vacate; the joint account is closed and divided within 30 days; the home buyout process begins on the notice date; and any support payments begin the first day of the month following departure.

Death of a Partner

A cohabitation agreement is not a will. Under EPTL § 4-1.1, an unmarried partner inherits nothing if the other dies intestate, and under EPTL § 3-2.1 a will must be signed at the end, published, and attested by two witnesses. The agreement can require each partner to maintain a will, life insurance, or beneficiary designations for the other, and it can make those promises enforceable against the estate. We prepare the wills, health care proxies under Public Health Law Article 29-C, and powers of attorney under General Obligations Law § 5-1501 at the same time as the agreement so that the documents match.

Dispute Resolution

The partners may agree to mediate before filing suit and may agree to binding arbitration under CPLR Article 75. An arbitration clause keeps the dispute private. It should specify the arbitrator selection method, the location within New York, and who pays fees.

What a Cohabitation Agreement Cannot Do

Some subjects are off limits or beyond the parties' control.

• Child support: The Child Support Standards Act, Family Court Act § 413 and Domestic Relations Law § 240(1-b), sets the parents' obligation. Parents may not waive it by contract, and any agreement deviating from the guidelines must recite the guideline amount and the reasons for deviation, subject to court approval.
• Custody and parenting time: A court decides custody based on the best interests of the child under Domestic Relations Law § 240 and Family Court Act Article 6. A parenting plan in a cohabitation agreement is evidence of the parties' intent, not a binding order. For a fuller discussion, see our page on whether a custody agreement without court approval is a good idea.
• Parentage: If the partners have a child together and are unmarried, parentage is established by an acknowledgment of parentage under Public Health Law § 4135-b or an order under Family Court Act Article 5. A cohabitation agreement does not establish it.
• Consideration tied to the relationship: Under Morone and McCall, any clause conditioning payment on the continuation of an intimate relationship is unenforceable.
• Third parties: The agreement binds the two partners. It does not bind a lender, landlord, or creditor. If both partners signed the mortgage, both remain liable to the bank regardless of what the agreement says.

Domestic Partnership Registration

Some New York municipalities, including New York City under Administrative Code § 3-240 and following, maintain a domestic partnership registry. Registration confers limited benefits, such as hospital visitation and certain housing succession rights, and may qualify a partner for employer health coverage. It does not create property rights, inheritance rights, or support obligations. Registered partners still need a cohabitation agreement.

Cohabitation Agreement Versus Prenuptial Agreement

The two documents serve different couples. A prenuptial agreement under Domestic Relations Law § 236(B)(3) alters rights that marriage would otherwise create. A cohabitation agreement creates rights that would not otherwise exist. If a couple intends to marry within a year or two, we usually recommend a prenuptial agreement drafted to take effect on the wedding date, with a short cohabitation section covering the interim. If marriage is not planned, a standalone cohabitation agreement is the right instrument. Couples who later marry and then separate will find that a properly executed agreement can also simplify the terms of a marital separation agreement, since the property questions are already answered.

How We Draft the Agreement

1. Intake and disclosure. Each partner completes a financial disclosure listing assets, debts, income, and any property expected by gift or inheritance. Full disclosure is not required by statute for unmarried partners, but it is the strongest defense against a later claim of fraud or unconscionability.
2. Separate counsel. We represent one partner. We recommend the other partner retain independent counsel and we include a clause reciting that each party had the opportunity to consult a lawyer. Courts give far more weight to an agreement negotiated by two represented parties.
3. Term sheet. Before drafting, we agree on the deal points in a two-page summary: ownership percentages, expense split, buyout terms, support, and survival on marriage. This avoids revising a 20-page document repeatedly.
4. Drafting and review. We circulate a draft, receive comments from the other side, and finalize. Most agreements are complete within four to six weeks of intake.
5. Execution. Both partners sign before a notary with acknowledgments under Real Property Law § 309-a. If the agreement affects title to real property, we record a memorandum in the county clerk's office where the property is located.
6. Related documents. We prepare or update wills, health care proxies, powers of attorney, and beneficiary designations at the same time.
7. Review triggers. The agreement should be revisited on the purchase of real property, the birth of a child, a significant change in income, or a decision to marry.

Enforcing or Defending an Existing Agreement

If a relationship has ended and one partner refuses to honor the agreement, the remedy is an action for breach of contract in Supreme Court, subject to the six-year period in CPLR § 213(2). Where the agreement concerns real property, the plaintiff may also plead partition under RPAPL Article 9 and ask the court to enforce the contractual allocation rather than the statutory presumption of equal shares. A partner seeking to avoid the agreement will typically argue lack of consideration, fraud in the inducement, duress, or unconscionability. Well-drafted recitals of consideration, complete financial disclosure, and independent counsel defeat most of these arguments.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].