Family Law FAQ

Property Agreements

What should a property agreement include?

Some states have specific statutes regarding agreements between unmarried cohabitating couples. This applies to same sex couples in many situations which we will discuss below. A common requirement is that the agreement be in writing and signed by both of the individuals. Additionally, both parties must have the capacity to enter into a contract and that contract must have consideration that is not based on the couple's sexual relationship.

When two people living together enter into a written property agreement, there are some requirements that they should include, such as:

• The intent of each party to enter into the agreement, full disclosure of financial worth for each party
• The jurisdiction applicable to the agreement (regardless of where couple resides)
• A list of separate property owned by each individual (this may mean property owned individually prior to the relationship or property acquired during that relationship that will be owned separately)
• A explicit division of the property in the event that the relationship does not last (the couple separates)
• The parties may also want to add alternatives, such as mediation, in case there is an argument regarding property at a later date.

It is also important that each party have his or her own attorney when entering into a written property agreement. This can ensure that each party's interests are represented and that the contract is not entered into by one party under duress, threat or pressure.

What are some special issues for same-sex couples?

Generally, the courts will uphold contracts between unmarried cohabitants regardless of sexual orientation. In the past, some courts have not recognized property-sharing relationships between unmarried persons (homosexual or heterosexual). This view has been rejected by the courts; the unmarried or sexual status of the persons entering a property agreement is not the source of consideration for that agreement and has no basis on the agreements' legal validity. In the past, other courts have also ruled that property agreements between same-sex couples are invalid due to public policy. However, this viewpoint has been rejected as well and is not a compelling legal argument.
When couples who are not married split up and have property and debts amongst them, we often hear these matters in the Civil court rather than the Family Law Court because the focus of the case is usually on contracts and is civil rather than family law related.

If you need assistance with any property agreement matter, contact the Law Office of Richard K Isles at 951-643-8541 or Toll Free at 888-513-5924.