What Are the Property Rights of an Unmarried Couple?

Florida family laws automatically confer many legal rights to married spouses. For example, they have the right to inheritance, the right to make medical decisions for their spouse if the spouse cannot do so, and the right to shared assets and property. 

If a married couple divorces, equitable distribution laws apply to marital assets. The court would decide on a fair property division if the married couple could not agree on how to divide their marital property. 

However, Florida family laws do not confer those same rights to unmarried partners who live together and consider themselves to be in a committed relationship, much like a marriage. 

Florida Does Not Recognize Common Law Marriage

Some states recognize the legal theory of common law marriage. Partners who live together and hold themselves out to be spouses can have the same rights as a married couple.

However, Florida does not recognize common law marriage. Florida Statute §741.211 makes common law marriages entered into after January 1, 1968, void. Common law marriages entered into before that date are still valid. 

What Is the Putative Marriage Doctrine?

Florida does recognize the putative marriage doctrine. The purpose of the doctrine is to protect a person who believes in good faith they are legally married, even though the marriage is invalid.

For example, a person marries someone who is legally married to another person. The marriage would be invalid by default. However, the putative marriage doctrine might apply if the person in good faith believed that the other person was single and could enter a marriage. 

Under the putative marriage doctrine, the spouse who married in good faith would have the same rights, benefits, and privileges as a spouse in a legal marriage. Therefore, the putative spouse would have property rights and be eligible to receive an equitable share of the couple’s “marital” property. 

Solutions for Unmarried Couples in Florida Regarding Property Rights 

There are several possible solutions for unmarried couples to protect their rights to property they acquire during their relationship. 

Titling Property in Both Names

An unmarried couple can title real estate, some personal property, and financial accounts in both names. Each person would own a share in the asset as a joint title holder. However, not all personal property has a title, so this is a limited solution for unmarried couples.

Sign a Cohabitation Agreement 

Some couples might consider signing a cohabitation agreement. Cohabitation agreements are legally binding contracts determining how property will be divided if the couple separates.

A cohabitation agreement can:

  • Provide joint access to retirement savings and financial accounts
  • Determine how assets are divided if the relationship ends
  • Establish expectations about decisions made for an incapacitated partner 
  • Decide who is responsible for future debts
  • How the couple will pay for large financial purchases
  • Who will pay the rent or mortgage payments
  • What property is considered separate property 
  • How to title future purchases
  • Pet custody issues
  • Whether either party will receive financial support if the couple separates
  • Expectations regarding inheritance and estate administration

Even though you have a valid cohabitation agreement, it is wise to execute powers of attorney, healthcare directives, Wills, and other estate planning documents that evidence your expectations expressed for these matters.

Can Unmarried Couples Include Child Custody and Child Support Arrangements in a Cohabitation Agreement?

A cohabitation agreement can include Issues related to child support, child custody, parenting plans, and visitation. However, the terms are subject to court review. A judge could modify the agreement if the judge determines the terms are not in the child’s best interest. 

Enforcing a Cohabitation Agreement in Florida 

Cohabitation agreements are subject to contract law. Therefore, they are enforced just like other contracts. It is wise to work with an experienced Orlando cohabitation agreement lawyer to avoid problems with the enforceability of a cohabitation agreement.

An Orlando cohabitation agreement attorney will ensure that the agreement is:

  • In writing and signed by both parties
  • Witnessed by a notary public 
  • The contract contains full disclosures by both parties
  • The agreement meets the requirements for a valid, enforceable contract under Florida law
  • The agreement contains provisions for modifying the terms. Generally, modifications must be in writing and signed by both parties.

It is wise for each party to have a separate lawyer to represent them as they negotiate, draft, and sign a cohabitation agreement. Having separate counsel ensures that each party understands their legal rights and the terms of the cohabitation agreement. It also helps in the event that you need to bring the matter to civil court to enforce the terms of the cohabitation agreement if you or your partner ends the relationship.

Contact Our Divorce Law Firm in Orlando, FL

Contact the experienced Orlando divorce lawyers at McMichen, Cinami & Demps today for legal assistance. Contact our Orlando, FL office at (407) 898-2161 to schedule a free consultation.

McMichen, Cinami & Demps – Orlando Office
1500 E Concord St
Orlando, FL 32803