Cohabitation agreements are enforceable in Michigan. Like prenuptial agreements, it is a “best practice” for each signatory to have the agreement reviewed by an attorney. The agreement cannot involve the custody or parenting schedule of minor children as those are issues ultimately decided in the family court via court orders.
The cohabitation agreement must be express or implied in fact, not inferred by law; this means it should be in writing if you hope to have the agreement in force. While cohabitation agreements can cover a wide range of subjects, most typical cohabitation agreements establish the respective rights of an unmarried couple to the property that is acquired during their relationship. Think of a cohabitation agreement as a prenuptial agreement for an unmarried couple.
The best practices for drafting a valid cohabitation agreement include: separate legal representation for each party signing the document; clearly defined property rights; expressly state the mode of ownership for real property; expressly state the intent of the parties; include enforcement provisions and attorney fee provision so that the person having to hire legal counsel to enforce the agreement is reimbursed and a party electing not to honor the agreement must pay for its enforcement.
The mode of ownership of real estate is important. Real estate owned by an unmarried couple must be carefully deeded in accord with the intent of the parties. Property law provides for the partition of real estate; an action can be brought in the county circuit court for partition relief if the subject property is owned in a particular manner. Accordingly, to preserve the right to partition real estate, most cohabitation agreements call for joint tenants not tenants in common. If property is owned as joint tenants with full rights of survivorship, then the property cannot be partitioned. These are things to think about when considering the terms for a cohabitation agreement.