This example is furnished merely for illustration and should not be used as a standard form. There is no specific statutory authority for this type of agreement. Therefore, these agreements should generally be governed by basic contract law.
Nonmarital Cohabitation Agreement
The parties to this Nonmarital Cohabitation Agreement are [name of party A], of [county] County, Texas, and [name of party B], of [county] County, Texas.
In consideration of the mutual promises contained in this agreement, and with the intent to be bound by this agreement, now and forever after, the parties stipulate and agree as follows:
Stipulations
1.The parties began living together in the same residence at [address, city], Texas, on [date] and intend to continue this living arrangement.
2.Each party is an unmarried person and a permanent resident of Texas.
3.Neither party will hold [himself or herself/himself/herself] out as the other party’s spouse. The parties are not married as of the date of this agreement, and they do not intend to marry at some future date. The parties agree that they will not do any act or cause any result that could be interpreted as creating a “common-law marriage” or an “informal marriage” as defined in sections 2.401 and 2.402 of the Texas Family Code and cases construing those statutes. The parties therefore agree that any subsequent marriage between them must be a formal ceremonial marriage, and any such marriage will affect this agreement only as provided in paragraph 1.1 below.
4.Neither party is relying on representations made by the other party about financial matters of any kind, other than the representations stated in this agreement or in any schedule or exhibit attached to it or delivered in connection with it.
5.As of the date of this agreement, the parties do not jointly own, legally or equitably, any property or property rights, nor does any sort of partnership or joint venture, oral or written, exist between the parties.
6.The parties intend by this agreement to define their property rights with one another, and they intend that this agreement supersede any rights either may have under the case law of any state or any statutory law, presently existing or that may be subsequently enacted, defining the rights and duties of unmarried persons living together.
Article 1
Effective Dates
This agreement is effective as of [date] and will continue until the separation of the parties or the death of either party.
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Select one of the following. |
Separation will be defined under the case law relating to marital separation in the jurisdiction in which the parties reside.
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Or |
Separation will be on the date the parties cease cohabitation. Cessation of cohabitation may be evidenced by written notice from one party to the other party. If there is written notice, separation will be deemed to have occurred on the date that written notice is delivered to the other party’s last known mailing address.
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Include the following if applicable. |
This agreement terminates if the parties marry each other.
Article 2
Children
2.1Children
[Name of party A] is the parent of [name], a [male/female] born on [date] in [city, state]. [Continue as applicable for other children.]
[Name of party B] is the parent of [name], a [male/female] born on [date] in [city, state]. [Continue as applicable for other children.]
2.2Obligations to Other Party’s Children
Neither party now intends to assume and, unless a court order of adoption is obtained, neither party will assume by virtue of their cohabitation any responsibility or obligation now existing or accruing in the future with respect to the other party’s child or children, as the case may be, biological or adopted. The parties specifically agree that neither party will be responsible for or be required to pay any expenses for education, including college, of the other party’s child or children, as the case may be. Each party agrees to indemnify and hold the other party and the other party’s property harmless from the assertion of any such claim or obligation now or in the future; provided, however, if either party voluntarily pays or advances any money for the educational or other expenses of the other party’s child, no obligation of indemnification or reimbursement will arise unless an explicit written understanding to indemnify or reimburse is executed contemporaneously with the payment or advance.
Article 3
Property Ownership
3.1Parties’ Intent
It is the intent of the parties that each party to this agreement, at all times, will maintain [his or her/his/her] own property and income and earnings from that property, as well as income and earnings from personal efforts, in separate ownership, independent of the other party. Prior to any ceremonial marriage of the parties, it is the parties’ intent that neither will have any claims of ownership or rights with respect to the properties or earnings of the other party, including any property on hand as of the date of this agreement or acquired in the future, including any income from such properties; the personal earnings or salaries of the other party; any Subchapter S earnings of any corporation owned all or in part by the other party; or any distributions from any partnership, limited partnership, or other entity owned, in whole or in part, by the other party. It is the further intent of the parties that neither party will have any right or expectation with respect to being supported, in whole or in part, by the other party or with respect to the income, earnings, or property of the other party. Further, neither party has entered into or continued this relationship in exchange for any promise—past, present, or future—for compensation, support, property, or benefits of any kind whatsoever based on their cohabitation.
3.2Property Owned by [name of party A]
All property listed in Schedule A attached to this agreement is stipulated and agreed to be property owned exclusively by [name of party A]. All that property will remain the sole property of [name of party A], free of any interest, beneficial, equitable, or otherwise, claimed by [name of party B].
3.3Property Owned by [name of party B]
All property listed in Schedule B attached to this agreement is stipulated and agreed to be property owned exclusively by [name of party B]. All that property will remain the sole property of [name of party B], free of any interest, beneficial, equitable, or otherwise, claimed by [name of party A].
3.4Property Acquired by Gift or Inheritance
All property hereafter acquired by a party by gift, devise, bequest, or inheritance will remain the sole property of the owner.
3.5Future Sole Property
Except as provided below, all earnings and income of each party will remain [his or her/his/her] sole property, respectively, and will not be subject to division on termination of the relationship. Any property hereafter acquired by either party out of the proceeds or income from sole property and from the earnings or income of that party or attributable to income from that property or appreciation in value of that property, whether the enhancement is due to market conditions or to the time, talent, or labor of the owner of the property, will remain the sole property of the respective party, free of any interest, beneficial, equitable, or otherwise, of the other party.
3.6Management of Property
Each party will have the full, free, and unrestricted right to manage the property [he or she/he/she] owns and the property over which [he or she/he/she] has control, including without limitation the right to convey or encumber the property; to dispose of it by sale, gift, or otherwise; and to deal with it without taking into consideration any rights or interests of the other party. If the joinder of [name of party A] or [name of party B] (“joining party”) should be required by law in connection with the execution of any document by the other party with respect to the property owned by the other party, on request and from time to time, the joining party must execute all such documents necessary to effect the desires of the other party, including the execution of gift tax returns, but without any personal liability of the joining party. Neither party will have the authority to encumber or dispose of the other party’s property without the other party’s express written consent.
Article 4
Liabilities
4.1Liabilities of [name of party A]
All liabilities and obligations (contingent and absolute) listed in Schedule C of this agreement are stipulated and agreed to be the liabilities of [name of party A].
4.2Payment of Liabilities of [name of party A]
[Name of party A] agrees that all those liabilities and obligations (contingent and absolute) that exist as of the effective date of this agreement are enforceable against and must be discharged from [his/her] property and are not enforceable against or dischargeable from the property of [name of party B]. [Name of party A] agrees to indemnify and hold [name of party B] and [her/his] property harmless from all such liabilities and to defend [name of party B] from any claims made against [her/his] property.
4.3Liabilities of [name of party B]
All liabilities and obligations (contingent and absolute) listed in Schedule D of this agreement are stipulated and agreed to be the liabilities of [name of party B].
4.4Payment of Liabilities of [name of party B]
[Name of party B] agrees that all those liabilities and obligations (contingent and absolute) that exist as of the effective date of this agreement are enforceable against and must be discharged from [her/his] property and are not enforceable against or dischargeable from the property of [name of party A]. [Name of party B] agrees to indemnify and hold [name of party A] and [his/her] property harmless from all such liabilities and to defend [name of party A] from any claims made against [his/her] property.
4.5No Reimbursement
If a party is unable to pay [his or her/his/her] debts or liabilities and the other party pays any such debt or liability on behalf of a party, the paying party [will/will not] have a right of reimbursement from the estate of the nonpaying party [include if applicable: and the payment of any such debt or liability will be deemed to be a gift by the paying party to the nonpaying party].
4.6Future Business Transactions of [name of party A]
To protect [name of party B]’s property from liability associated with any future business transactions during the parties’ cohabitation, excluding transactions conducted by [name of party A] on behalf of [his/her] employer, [name of party A] agrees to take all reasonable steps and perform all reasonable actions to ensure that all future business transactions in which [name of party A] is involved are handled either through an entity owned solely by [name of party A] that exists now or through a new entity capitalized with [name of party A]’s sole property in the future. Further, [name of party A] agrees to take all steps and perform all actions necessary to prevent [name of party B]’s property from being an obligor, a guarantor, or in any way liable for any future business transactions in which [name of party A] participates.
4.7Future Business Transactions of [name of party B]
To protect [name of party A]’s property from liability associated with any future business transactions during the parties’ cohabitation, excluding transactions conducted by [name of party B] on behalf of [her/his] employer, [name of party B] agrees to take all reasonable steps and perform all reasonable actions to ensure that all future business transactions in which [name of party B] is involved are handled either through an entity owned solely by [name of party B] that exists now or through a new entity capitalized with [name of party B]’s sole property in the future. Further, [name of party B] agrees to take all steps and perform all actions necessary to prevent [name of party A]’s property from being an obligor, a guarantor, or in any way liable for any future business transactions in which [name of party B] participates.
4.8Pending or Future Litigation
[Name of party A] agrees to indemnify and hold [name of party B] and [her/his] property harmless from all costs and liabilities arising from all pending and future litigation caused or alleged to have been caused solely by [name of party A]’s acts or omissions.
[Name of party B] agrees to indemnify and hold [name of party A] and [his/her] property harmless from all costs and liabilities arising from all pending and future litigation caused or alleged to have been caused solely by [name of party B]’s acts or omissions.
Article 5
Living Expenses
5.1Payment of Household and Personal Expenses and Purchases Made from Account
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Select one of the following. |
[Name of party A] agrees to pay [percent] percent and [name of party B] agrees to pay [percent] percent of the parties’ living expenses while they are living together. [Name of party A] agrees to deposit [number] dollars ($[amount]) and [name of party B] agrees to deposit [number] dollars ($[amount]) monthly into a special joint checking account on which either party can draw for living expenses.
Expenditures for living expenses or for the common benefit will be made from the joint account. Neither party may draw on the joint account for any purpose other than such expenses, and each party must keep the other informed of all withdrawals. Each party must, from [his or her/his/her] sole funds, defray [his or her/his/her] personal expenses, pay for [his or her/his/her] purely personal expenses for clothing and otherwise, and maintain or provide for [his or her/his/her] sole property and investments.
All property or household goods purchased from the joint account and any balance in the joint account will be owned in the same percentages as contributions to the account. All other bank accounts will be kept separately by the parties, and each must maintain [his or her/his/her] other accounts free from commingling of funds.
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Or |
The parties may agree to maintain one or more joint bank accounts, which will be designated the “[specify] Household Account” or some similar name, and that the account will be used for the purposes described below. In that event, each party will contribute [number] dollars ($[amount]) each month. Except as otherwise specifically stated, the funds on deposit in the account will be used for payment of the mortgage payment (principal and interest), rent, groceries, utilities, maintenance and repairs, and all other miscellaneous household expenses (collectively called “living expenses”) that may arise during the term of this agreement. The payment by one party of all or a majority of any living expenses will not create a right of reimbursement by the party paying those living expenses, affect the character of any property currently in existence or property that may be acquired in the future, or create an ownership interest in any property by a party that the party does not already have and does not acquire in the future by other means.
To the extent the parties elect to open and maintain one or more joint bank accounts, each party will have an undivided one-half interest in the funds on deposit in the account(s) as [his or her/his/her] sole property. Each party will have an undivided one-half interest in all assets acquired with any funds from a joint bank account as [his or her/his/her] sole property.
If either party dies, all funds remaining in any joint bank account(s) will be the sole property of the surviving party.
Article 6
Release and Indemnification
6.1Releases
[Name of party A] hereby releases [name of party B] and [her/his] successors, assigns, heirs, and legal representatives from any claims that [name of party A] might make in the future seeking or claiming ownership of or reimbursement against any income or property of [name of party B], now owned or acquired in the future, arising from or during their cohabitation and from any claims that [name of party A] might make against [name of party B] for compensation for services as a result of a contract, quantum meruit claims, or otherwise or claims for future support or property because of or arising in connection with the cohabitation of the parties.
[Name of party B] hereby releases [name of party A] and [his/her] successors, assigns, heirs, and legal representatives from any claims that [name of party B] might make in the future seeking or claiming ownership of or reimbursement against any income or property of [name of party A], now owned or acquired in the future, arising from or during their cohabitation and from any claims that [name of party B] might make against [name of party A] for compensation for services as a result of a contract, quantum meruit claims, or otherwise or claims for future support or property because of or arising in connection with the cohabitation of the parties.
6.2Indemnification
[Name of party A] agrees to indemnify [name of party B] or [her/his] estate for any loss, cost, expense, or damage sustained by [her/him] in the event that [name of party A] ever seeks to recover from [name of party B] any amount for alleged property rights, future support, compensation for services rendered unless specifically agreed on by both parties in writing before the rendition of the services, or reimbursement because of or resulting from any alleged informal marriage, common-law marriage, or otherwise, because of the cohabitation of the parties.
[Name of party B] agrees to indemnify [name of party A] or [his/her] estate for any loss, cost, expense, or damage sustained by [him/her] in the event that [name of party B] ever seeks to recover from [name of party A] any amount for alleged property rights, future support, compensation for services rendered unless specifically agreed on by both parties in writing before the rendition of the services, or reimbursement because of or resulting from any alleged informal marriage, common-law marriage, or otherwise, because of the cohabitation of the parties.
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See form 63-3 for other provisions that may be included in a nonmarital cohabitation agreement. |
Article 7
General Provisions
7.1Consideration for Agreement
The consideration for this agreement is the mutual promise of each party to act as companion and homemaker to the other, in addition to the other specific promises contained in this agreement. Any services that either party may provide to the other party or for the benefit of the other party are fully compensated by this agreement.
7.2No Fiduciary Duty
No fiduciary duty shall arise between the parties solely as a result of this agreement or the parties’ cohabitation.
7.3Support after Separation or Death
Each party waives the right to be supported by the other party after their separation or after the death of either party, and each party agrees not to make any claim for such support.
7.4Entire Agreement
This instrument contains the parties’ entire agreement concerning their financial relationship, past, present, and future. This agreement replaces any earlier agreements or understandings, whether written or oral, and there are no contemporaneous agreements or understandings that are not fully expressed in it. All prior and contemporaneous conversations, negotiations, possible and alleged agreements and representations, covenants, and warranties regarding the subject matter of this agreement are waived, merged in this agreement, and superseded by this agreement.
7.5Partial Invalidity
If any provision of this agreement is for any reason found to be unenforceable, all other provisions nonetheless remain enforceable.
7.6Amendment or Modification
This agreement may be waived, abandoned, modified, amended, discharged, or terminated only by a written instrument signed by both parties that specifically identifies the waiver, abandonment, modification, amendment, discharge, or termination.
7.7Governing Law
All rights, duties, and obligations under this agreement are payable and enforceable in [city, county] County, Texas. This agreement must be construed, and its performance enforced, under Texas law.
7.8Successors
This agreement binds and inures to the benefit of the parties and their respective legatees, devisees, heirs, executors, legal and personal representatives, assigns, transferees, and successors in interest.
7.9Waiver of Breach or Term
The waiver of any breach of any provision of this agreement does not waive any other breach of that or any other provision. Waiver of any term of this agreement may be accomplished only concerning future performance and only by a written instrument signed by both parties expressly stating the provisions waived.
7.10Titles and Captions
Article headings, titles, and captions contained in this agreement are merely for reference and do not define, limit, extend, or describe the scope of this agreement or any provision.
7.11No Construction against Draftsman
No provision of this agreement may be interpreted for or against any party because the party or the party’s legal representative drafted the provision.
7.12Costs and Expenses
Each party must bear [his or her/his/her] own costs and expenses incurred in connection with this agreement.
7.13Attorney’s Fees and Expenses for Enforcement
If either party brings an action or other proceeding to enforce this agreement or to enforce any judgment, decree, or order made by a court in connection with this agreement, the prevailing party will be entitled to recover reasonable attorney’s fees and other necessary costs from the other party. If either party files a declaratory judgment proceeding to determine the enforceability of this agreement, neither party will be entitled to an award of attorney’s fees unless a party successfully challenges the validity of this agreement, in which event the court will have the authority to award attorney’s fees. If either party seeks to invalidate some or all of this agreement or seeks to recover property in a manner at variance with this agreement, the successful party will be entitled to recover reasonable attorney’s fees and other necessary costs from the other party.
7.14Exclusive Remedy for Nonmonetary Breach
Except as expressly provided otherwise in this agreement, the exclusive judicial remedy of either party against the other for failure to perform any nonmonetary duty or obligation under any provision of this agreement is judicial enforcement by judgment for specific performance or mandatory injunction and writ of execution to compel performance, plus reasonable attorney’s fees. Neither party is entitled to recover any damages, actual or consequential, for any nonmonetary breach. No failure of either party to perform any nonmonetary duty or obligation under this agreement diminishes or impairs the full effectiveness of its provisions.
7.15Assignment Prohibited
This agreement is personal to the parties, and neither party may assign or delegate any of [his or her/his/her] rights or obligations under it.
7.16Representation
The attorney representing [name of party A] is [name]. The attorney representing [name of party B] is [name]. [Name of party A] has not received any legal, financial, or other kind of advice from [name of party B] or from [her/his] attorney, [name], in connection with the advisability or nonadvisability of entering into this agreement. [Name of party B] has not received any legal, financial, or other kind of advice from [name of party A] or from [his/her] attorney, [name], in connection with the advisability or nonadvisability of entering into this agreement. [Name of party A] is relying on [his/her] own judgment and the advice of [his/her] attorney in entering into this agreement. [Name of party B] is relying on [her/his] own judgment and the advice of [her/his] attorney in entering into this agreement.
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Or |
[[Name of party A]/[name of party B]] acknowledges that [he/she] has had the opportunity to retain independent counsel to represent [him/her] in connection with this agreement and that [he/she] has been encouraged by [[name of party B]/[name of party A]] and others to obtain an attorney of [his/her] choice to represent [him/her], but that [he/she] has specifically declined to do so and is relying on [his/her] own judgment in entering into this agreement. Notwithstanding the fact that [[name of party A]/[name of party B]] has represented [himself/herself] in this matter, [[name of party A]/[name of party B]] reaffirms the warranties made by [him/her] in this agreement and further represents and warrants that [he/she] has the requisite knowledge, skill, and training to fully understand the consequences of [his/her] execution of this agreement. Finally, [[name of party A]/[name of party B]] represents and warrants that [he/she] has not received any legal, financial, or other kind of advice from [[name of party B]/[name of party A]] or [name] or any other attorney with the law firm of [name] in connection with the advisability or nonadvisability of entering into this agreement.
Article 8
Representations and Warranties
Warning
Each party to this agreement understands that by signing this document [he or she/he/she] is permanently surrendering rights and claims [he or she/he/she] may accrue under Texas law and under the law of other jurisdictions.
8.1Representations and Warranties of [name of party A]
My name is [name of party A]. I represent and warrant that:
1.I have carefully read each and every page of this agreement [include if applicable: and all schedules attached or referred to, in their entirety].
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Include item 2. if applicable. |
2.I am fully and completely informed by my attorney about the law relating to the subject matter of this agreement.
3.I am entering into this agreement voluntarily [include if applicable: after receiving the advice of independent counsel].
4.I have given careful and mature thought to the making of this agreement.
5.I fully and completely understand each provision of this agreement, concerning both the subject matter and the legal effect.
6.I am not relying on any fiduciary obligations owed by one party to the other party or on any duty of disclosure founded on a confidential or other relationship between the parties. Furthermore, I am not relying on any legal or accounting advice or representation of fact or law provided by [name of party B] or anyone acting on [her/his] behalf.
7.I fully understand that, by signing this agreement and accepting any benefit whatsoever under it, I will be estopped from making any claim of any kind at any time to any sole property or the sole estate of [name of party B], except as expressly provided for in this agreement.
8.I am executing this agreement with the intent to be bound fully by all its terms.
[Name of party A]
8.2Representations and Warranties of [name of party B]
My name is [name of party B]. I represent and warrant that:
1.I have carefully read each and every page of this agreement [include if applicable: and all schedules attached or referred to, in their entirety].
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Include item 2. if applicable. |
2.I am fully and completely informed by my attorney about the law relating to the subject matter of this agreement.
3.I am entering into this agreement voluntarily [include if applicable: after receiving the advice of independent counsel].
4.I have given careful and mature thought to the making of this agreement.
5.I fully and completely understand each provision of this agreement, concerning both the subject matter and the legal effect.
6.I am not relying on any fiduciary obligations owed by one party to the other party or on any duty of disclosure founded on a confidential or other relationship between the parties. Furthermore, I am not relying on any legal or accounting advice or representation of fact or law provided by [name of party A] or anyone acting on [his/her] behalf.
7.I fully understand that, by signing this agreement and accepting any benefit whatsoever under it, I will be estopped from making any claim of any kind at any time to any sole property or the sole estate of [name of party A], except as expressly provided for in this agreement.
8.I am executing this agreement with the intent to be bound fully by all its terms.
[Name of party B]
EXECUTED in multiple originals on the dates and at the times of the acknowledgments shown below.
State of Texas)
County of)
This instrument was acknowledged before me at ____________ __.m. on __________________ by [name of party A].
Notary Public, State of Texas
I, the notary public whose signature appears above, certify that I am not an attorney representing either party to this agreement.
State of Texas)
County of)
This instrument was acknowledged before me at ____________ __.m. on __________________ by [name of party B].
Notary Public, State of Texas
I, the notary public whose signature appears above, certify that I am not an attorney representing either party to this agreement.
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Attach appropriate schedules. The schedules should be signed by the parties. See examples in form 63-3. |