Does Florida Allow Oral Cohabitation Agreements?

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Photo Credit – Adobe Stock

What if you had lived with someone for 46 years as a couple.  You had agreed to provide for each other and take care of each other.  You had purchased a home together and created identical wills leaving everything to each other.   What happens when this relationship ends.  Will Florida recognize an unwritten cohabitation agreement?

Yes.  Florida law recognizes that unmarried cohabitants may agree to enter into an enforceable contract that establishes rights and responsibilities toward each other as long as it is clear that the consideration is not an express or implied agreement for sexual relations.   In a recent case, Florida’s 4th District Court of Appeals ruled that cohabitation contracts can be oral, and that the parties’ “course of conduct” can be used as evidence to support the existence of such an agreement. *

I think this case, and a recent Supreme Court of Florida case involving a prenuptial agreement, show a trend where the court will consider a couples’ course of conduct over an extended period of time.  (As opposed to applying bright line rules).  On a case by case basis, this approach may produce results that instinctively “feel” fair.  However, this trend makes it difficult to provide clients with advice about protecting themselves financially.  It also makes trial outcomes less predictable, which can make it harder to settle cases.  (It increases “litigation risk”).

I am a strong supporter of using the “collaborative” process to resolve these type of cases.  If you want to find out why, I have provided a link:  COLLABORATIVE DIVORCE

*  Armao vs. McKenney, 42 Fla. L. Weekly D1011 (4th DCA May 3, 2017)

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