LGBTQ Cohabitation Agreements

Give living together a fancy name and you’ve got “cohabitation.” Mix that with a contract and voila, you have a “cohabitation agreement!”

A cohabitation agreement is a prenup without the nuptials that serves to protect a couple who want to live together and avoid unnecessary legal issues and costs, should the relationship end.

It functions as a contract between an unmarried couple who cohabits and enjoys an intimate, economical and social relationship.

A cohabitation agreement is intended to bind both parties and allow them to determine, in advance, what property rights each will have during the relationship. This is particularly important if you want to protect property you inherited or if one of you owns a home in which both of you will live. It’s important to be able to refute any possibility of gifting or reimbursement rights in the event of a dispute.

Cohabitation agreements are particularly beneficial for residents of Texas and other states where common law marriage is recognized. In these states, the parties to a cohabitation agreement are referred to as “spousal equivalents” or something similar because the agreement intends to avoid the creation of a common law or informal marriage.

As with any contract, consideration is required for it to be valid. Consideration is a benefit that must be bargained for between parties. In the case of a cohabitation agreement, it may be a mutual promise to act as companion and homemaker to the other, in addition to other specific promises contained in the agreement.

You will want to lay out arrangements for financial support, debts and caring for the children. You can stipulate if any financial support is expected to be paid, who will pay it, the amount, and for how long.

Life insurance policies are also often a part of these agreements to protect one partner who may be dependent on the other or living in his/her partner’s home.

These agreements are created with good intentions to serve as an outline for healthy relationships based on mutual respect, not surreptitious activities. In other words, cohabitation agreements are not a contract where sexual services are used as part of the consideration for the contract. If there is ever a suit for breach of contract and this is found to be the case, the contract will be unenforceable.

There are three types of cohabitation agreements: written, oral, and Implied. Most states require cohabitation agreements to be written, so it is best to have your agreement in writing because it can be difficult for courts to determine what you both agreed to orally or implied when you don’t have everything you agreed upon written out.

In cases involving oral and implied cohabitation agreements, the intent and conduct of the parties is under review. If there is no independent proof of your intention, courts may choose not to recognize the validity of your oral or implied cohabitation agreement at all.

A lawyer can advise you of your rights, specific to your situation and your state, and help to ensure your interests are fairly and equitably represented in your cohabitation agreement. For this reason, each party should retain his/her own lawyer because one lawyer cannot properly represent both of your interests.

The majority of states, including Texas, recognize these agreements. That said, it is important to note that In the event of a suit for breach of contract, it is rare, nationwide, for courts to award support payments in domestic partner splits. It’s important to know this so you enter your cohabitation agreement with your eyes wide open.

LGBTQ Marriage, and Parenting

When the United States Supreme Court held same-sex marriage is legal and must be recognized in all fifty states, it granted greater constitutional rights to same-sex couples nationwide. Cindy has years of experience advocating for the rights of and advising members of the LGBTQ community. She can help you navigate the myriad of the happy family law issues as you try to cohabitate, marry, and raise a family.

Yes, same-sex couples in Texas can enter an informal or common-law marriage and hold, as their legal marriage date, the earliest date at which they satisfied all the requirements of an informal marriage. Both parties must be at least 18-years-old and legally single. A new informal marriage cannot start until a prior marriage is dissolved, regardless of the intent and behavior of the couple. Also, the parties cannot be related by consanguinity, as defined by the Texas Family Code.

To prove “common law” marriage, you must demonstrate evidence that (1) a declaration of marriage has been signed; OR (2) by showing both parties agreed to be married, then cohabitated together in Texas as a married couple, and represented themselves as married to others in Texas. All three requirements must occur at the same time, although there is no minimum duration.

Yes. You can enter an informal or common-law marriage and, hold, as your legal marriage date, the earliest date at which you satisfy all the requirements of an informal marriage. This is particularly important in regards to determinations of separate and community property and benefits, such as pensions and Social Security. According to the Texas Department of State Health Services, “Applicants, regardless of gender, may apply for an informal marriage license using any date applicable to their relationship.”

In this situation, a cohabitation agreement would be very beneficial. In Texas, where common law marriage is recognized, the parties to a cohabitation agreement are referred to as “spousal equivalents” because the agreement intends to avoid the creation of a common law or informal marriage.

Legal marriage in Texas does not mean the non-biological parent will be automatically recognized as the presumptive parent (as is the case for opposite-sex couples.) For same-sex couples in Texas, the non-biological parent in a same-sex marriage must legally adopt his/her child(ren) born during the marriage. It is also important to note that, In Texas, the woman who gives birth is always the mother, even if another woman donated the egg(s)/embryo(s). The only exception to this rule is in cases involving gestational surrogacy where a valid gestational agreement is in place. In cases of adoption, where one spouse adopts a child, the non-adoptive spouse must legally adopt the child in order to have parental rights.

If you are considering using an egg or sperm donor, it is important to understand how Texas defines a donor. While the Texas Family Code states a donor is not a parent of a child conceived by means of assisted reproduction (Sec. 160.702), it limits the definition of a donor to an individual who provides eggs or sperm to a licensed physician to be used for assisted reproduction, regardless of whether the eggs or sperm are provided for consideration. While it is not possible to donate an egg without the assistance and involvement of a physician, this definitely can make things tricky for families who want to use a known sperm donor. If you are considering using a known donor, please contact a lawyer with experience in this area to discuss your options and understand your rights. Even if you are purchasing sperm through a bank, there are still many important issues to consider.

Yes, Texas allows any adult to adopt a child without regard to the adult’s sexual orientation or gender identity. A second-parent or stepparent adoption allows you to adopt your spouse’s adopted or biological child(ren). In some cases, it will be necessary to first terminate the parental rights of a 2nd biological parent. It’s important to note the court may not grant an adoption until the child has resided with the petitioner for at least six months. Call Cindy to find out more about second-parent or stepparent adoption.


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