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What Constitutes A Written Co-hab Agrement
Jan L. Warner & Jan Collins

Question: I read your column religiously but, unfortunately, didn’t begin to pay attention until it was too late. I have been in ten-year relationship that has "gone south."

In the beginning we planned to marry, so we bought a home together. It was titled in my name and I took out the mortgage because he had bad credit. I later transferred a half-interest to him. We discussed that if things did not work out, we would both be responsible for expenses according to the percentages of our gross incomes, and would divide the equity in the house based on our respective overall contributions. I earned two-and-a-half times what he did, and I paid three-quarters of the expenses because he was supporting his children by a prior marriage who lived with us. We kept a spreadsheet on the computer that was updated quarterly with household expenses, i.e. mortgage, utilities, alarm, yard, and monthly association fees, but we never had a written or signed agreement.

One day, he came home for lunch with a truck, took most of the items in the house, and left. I had bought almost all of the furniture, but he took some of it. When he did not get in touch with me for months, I went to a lawyer. There is nearly $80,000 in equity, and he wants half. The spreadsheet shows that he is only entitled to $5,000 after credits for the furniture he took. Although he and his children lived in the house with me, being the "nice guy", I didn't even allocate the children's expenses to him. I made every mortgage payment -- $1,500 each month. He kept telling me that he didn't want to get married until later, but now that it is to his advantage, he wants to split the assets.

My attorney says the speadsheet won't really help and that the house – titled in joint names although only my name is on the mortgage – should be sold. What is your opinion? I don't want to lose my home. This seems very unfair.

Answer: Although we don't know all the facts and don't want to second-guess your lawyer, based on the background you give, we believe that the spreadsheet may well contain your agreement. While certainly not as good as a written cohabitation agreement, it shows your intentions, or why else would you and he go to the trouble of keeping such detailed records?

Secondly, your lawyer may want to look at the legal theories of constructive trust and unjust enrichment, which may be applicable and might achieve an equitable resolution of your thorny problem.

As an aside, another potential pitfall for unmarried cohabitants has raised its ugly head: The Supreme Court of New Jersey has ruled that when an unmarried cohabitant orally promised his 25-year partner that he would support her for life, that contract was enforceable against his estate if there was reliance on the promise. In finding that he had made a contractual commitment to her that bound his estate, the New Jersey court said that promises of support need not be written, but can expressed in words or implied by conduct -- or both. A word to the wise should be sufficient.

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