People are getting married less and less often in Florida. That doesn’t mean that people are not getting into relations where they rely on each other’s mutual promises, however. A relationship can be whatever you want it to be under Florida law and you can enforce the terms of that relationship in an oral or written cohabitation agreement.
What Is A Cohabitation Agreement In Florida?
A cohabitation agreement is just like any other contract two people would enter into asking for assurances from each other in the present and future.
“The right to contract is one of the most sacrosanct rights guaranteed by our fundamental law. It is expressly guaranteed by article I, section 10 of the Florida Constitution” Chiles v. United Faculty of Florida, 615 So. 2d 671 – Fla: Supreme Court 1993
In the old days, people didn’t want unmarried people contracting with each other…because that looked a lot like prostitution.
Today, however, all contracts between unmarried adults in Florida will stand so long as they are not purely for sex.
“[A]n agreement for support between unmarried adults is valid unless the agreement is inseparably based upon illicit consideration of sexual services.” Posik v. Layton, 695 So. 2d 759 – Fla: Dist. Court of Appeals, 5th Dist. 1997
Even if the parties are having sex (of course they are) that doesn’t turn a cohabitation agreement into a voidable prostitution/sugar baby contract.
“[A]dults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights…. So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose” Marvin v. Marvin (1976) 18 Cal.3d 660, 666 [134 Cal. Rptr. 815, 557 P.2d 106]
A written cohabitation contract will always contain non-sexual terms that will make the agreement valid.
“A cause of action based on an express contract … is enforceable regardless of the fact that the parties may be cohabiting illicitly as long as it is clear there was valid, lawful consideration separate and apart from any express or implied agreement, regarding sexual relations.” Poe v. Estate of Levy, 411 So.2d 253, 256 (Fla. 4th DCA 1982)
Written Cohabitation Agreements In Florida
Ideally, a contract should be in writing so the terms of the contract can be memorialized and interpreted.
“Because of the potential abuse in marital-type relationships, we find that such agreements must be in writing. The Statute of Frauds (section 725.01, Florida Statutes) requires that contracts made upon consideration of marriage must be in writing. This same requirement should apply to non-marital, nuptial-like agreements.” Posik v. Layton, 695 So. 2d 759 – Fla: Dist. Court of Appeals, 5th Dist. 1997
A mere piece of paper will not be enough to make a cohabitation contract enforceable.
“It is elementary that for an enforceable contract to exist there must be an offer, an acceptance, consideration, and sufficient specification of terms so that the obligations involved can be ascertained.” Townsend Contracting v. JENSEN CIV. CONST., 728 So. 2d 297 – Fla: Dist. Court of Appeals, 1st Dist. 1999
The contract and its signatures represent the offer, acceptance of offer and the sufficient specifications but there must be some kind of consideration in addition.
Consideration is something of value given by both parties which induces them both to enter into the contract.
“Something (such as an act, a forbearance, or a return promise) bargaining for and received by a promisor from a promisee; that which motivates a person to do something, esp. to engage in a legal act.” Black’s Legal Dictionary.
Anything can be consideration. Mutual contribution to housing expenses. Cleaning the household. Care of one another. Again, the only thing that can’t be consideration is sex.
“[I]f the consideration for the agreement is not sexual intercourse then the mere fact the parties are not married should not ipso facto preclude the parties from contracting according to law.” Poe v. Estate of Levy, 411 So. 2d 253 – Fla: Dist. Court of Appeals, 4th Dist. 1982
A written cohabitation agreement will contain the terms of their ongoing relationship like who pays what percentage of the mortgage. More importantly, a written cohabitation agreement will contain the terms the parties agree to abide by during and after the parties’ separation.
Sample language of a cohabitation contract can look like this:
“SEPARATION: In the event the Parties separate or no longer wish to live together at MEDITERRA, the parties agree to the following:
- Either party may buy out the other party’s interest in MEDITERRA at fifty (50%) of the equity in MEDITERRA.
- The Equity in MEDITERRA shall be defined as the fair market value of the property at the time of their separation, less the balance of the mortgage, taxes, insurance, and/or other encumbrances on the property at the time of their separation.
- The parties agree that the fair market value shall be determined by their chosen realtor, KRISTIN CAVELLA.
- In the event that the parties cannot agree to who will buy out the property, then MEDITERRA shall be listed for sale.
- The listing agent or realtor shall be KRISTIN CAVELLA who will determine the listing price at a fair market value for a quick sale.
- In the event of the sale of MEDITERRA or any replacement or subsequent property, the parties agree to split evenly the proceeds from the sale after satisfaction of the mortgage, taxes, insurance, necessary repairs for the sale, and/or other encumbrances on the property as well as reasonable and customary closing costs.
- The parties agree that they will reside together until the Property is sold. If for any reason either party vacates the property prior to the sale of the Property, the Parties agree that they shall nevertheless be each responsible for fifty (50%) percent of the monthly mortgage, taxes and insurance until the property is sold. “
Additionally, a written cohabitation agreement can contain instructions if either party becomes incapacitated or dies.
There is almost no limit on what can be contracted for between unmarried couples. One of the only limitation is that if the unmarried couple has children, they cannot contract for custody or child support in advance of their break up.
Oral Cohabitation Agreements In Florida
Most cohabitation agreements are actually oral contracts and not written contracts. So, if you’re living with someone else…you are probably in a cohabitation agreement whether you know it or not.
“[N]othing in the statute of frauds, section 725.01, Florida Statutes, requires that [a cohabitation] agreement be in writing.” Armao v. McKenney, 218 So. 3d 481 – Fla: Dist. Court of Appeals, 4th Dist. 2017
“An oral agreement between cohabiting parties, if proved, is enforceable.” Dietrich v. Winters, 798 So. 2d 864 – Fla: Dist. Court of Appeals, 4th Dist. 2001
“An oral contract… is subject to the basic requirements of contract law such as offer, acceptance, consideration and sufficient specification of essential terms.” St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004).
The problem with oral contracts is that “a party who asserts an oral contract must prove its existence by a preponderance of the evidence.” St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004).
Again, what looks like a purely sexual relationship will not be enough to establish an oral cohabitation agreement.
“Mutual promises to live together in a meretricious or illegal relationship are not sufficient consideration to support an agreement of partnership.” Botsikas v. Yarmark, 172 So. 2d 277 – Fla: Dist. Court of Appeals, 3rd Dist. 1965
Other activities that look like cohabitation agreements or the result thereof will establish an oral cohabitation agreement.
“[C]o-signing of the note, the pledging of the certificate of deposit and the promise to repay the loan all constituted valid and lawful consideration separate and apart from any express or implied agreement regarding sexual relations” Stevens v. Muse, 562 So. 2d 852 – Fla: Dist. Court of Appeals, 4th Dist. 1990
“When the existence of a contract is clear, the [finder of fact] may properly determine the exact terms of an oral contract.” Perry v. Cosgrove, 464 So. 2d 664 – Fla: Dist. Court of Appeals, 2nd Dist. 1985
Determining the terms of an oral cohabitation agreement is very difficult. The parties will have to testify to what they agreed to orally and corroborate that agreement by proving they abided by the known terms.
What a court cannot do is say “This sounded an awful lot like a marriage so I’m going to divide their stuff like they were married.”
One appeals court opined that “[i]t appears that the trial court divided the parties’ assets in a manner like an equitable distribution in a dissolution of marriage action. However, we cannot approve of such a division of property between two nonmarital partners under the circumstances of this case. On remand, the trial court should consider what, if any, agreement the parties had concerning the acquisition of assets and should consider what relief may be proper under the theories of law pleaded.” Hustin v. Holmes, 508 So. 2d 535 – Fla: Dist. Court of Appeals, 2nd Dist. 1987
A Florida court cannot order a divorce-like solution for a marriage-like relationship. For an unmarried couple, it will be very difficult to distinguish what was consideration and performance pursuant to the agreement and what was just a living expense they were going to incur anyways.
“[C]ontribution toward the mortgage payments on the home during [a relationship] does not entitle [one]…to an equitable distribution of the home as the payments represented no more than her fair contribution to the joint living expenses of the parties.” Moore v. Moore, 490 So. 2d 1342 – Fla: Dist. Court of Appeals, 3rd Dist. 1986
Constructive Trusts And Cohabitation Agreements In A Florida Divorce
When there is no specific agreement (virtually all oral agreements) the court can make up an unwritten trust in which to hold the disputed property. This is called a “constructive trust.”
“[A] constructive trust is a relationship adjudicated to exist by a court of equity based on particular factual situations created by one or the other of the parties. The element of intent or agreement either oral or written to create the trust relationship is totally lacking. The trust is “constructed” by equity to prevent an unjust enrichment of one person at the expense of another as the result of fraud, undue influence, abuse of confidence or mistake in the transaction that originates the problem.” Wadlington v. Edwards, 92 So. 2d 629 – Fla: Supreme Court 1957
Establishing a constructive trust is not easy.
“We have held that one who asserts the existence of a constructive trust must establish it by proof to the exclusion of all reasonable doubt. A mere preponderance of the evidence is insufficient.” Smith v. Smith, 108 So. 2d 761 – Fla: Supreme Court 1959
A constructive trust looks more to fairness than the terms of the oral agreement…which would probably never be determined with any kind of specificity anyways.
“[A] constructive trust may be imposed to do equity between unmarried cohabitants…A cause of action for a constructive trust is maintainable between parties cohabiting illicitly as long as it is clear that there was a valid, lawful consideration separate and apart from any express or implied agreement regarding sexual relations, labor, and material — separate and distinct from spouse-like services — are valid consideration that will support the imposition of a constructive trust.” Evans v. Wall, 542 So. 2d 1055 – Fla: Dist. Court of Appeals, 3rd Dist. 1989
If you’re living with someone and not married to them, you probably need a cohabitation agreement. A cohabitation agreement is a great way to ease your partner into a prenuptial agreement should things get even more serious. Contact my Naples, Florida family law law office today to discuss writing up a cohabitation agreement. Otherwise, you may be bound by the presumed oral cohabitation agreement you’ve already entered…whether you know it or not.