Shared Residence Agreement/More Info

Shared Residence Agreement
Additional Information

Joint and Several Liability

Roommates need to be aware of their legal obligations on a lease or mortgage.  In nearly every case, a landlord (or lender, in the case of a mortgage) will require each roommate to be 'jointly and severally liable'.  This means the landlord can look to either roommate for the full performance of all obligations.  If one roommate fails to pay, having a written agreement is important for the paying roommate to be able to make a claim against the non-paying roommate. 

Special Issues for Couples

Men and women living together have some unique legal issues to consider.  In particular, each person should keep in mind the following:

- If one of the roommates was previously married and is receiving alimony (i.e., support or maintenance), the cohabitant's ex-spouse may be relieved of his or obligation to pay in the future.  This is now a standard provision in most divorce settlement agreements.  If you are receiving alimony, check with your attorney to make sure that moving in will not cause you to lose this income.

- If you are a parent with custody of a child by a prior marriage, moving in may also put your custodial rights in jeopardy.  Many ex-spouses have gone to court to challenge custody when the custodial parent moves in with someone else, arguing the possible negative effects on the child.

- Married couples have certain property rights, as a matter of state law, upon a divorce or if a spouse dies. Unmarried couples do not have these same property rights.  If you are not married and your cohabitant dies or moves out, your rights are likely limited to those set out in an enforceable, written agreement,

- Common law marriage still exists in many jurisdictions. In Alabama, Colorado, the District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Texas, a man and woman may be legally considered to be married although no state recognized official performed a marriage service.  New Hampshire also has a statute that recognizes a sort of common law marriage effective only at death.   Tennessee courts have from time to time recognized a similar doctrine.   Although a written agreement can help protect against a finding that there is a common law marriage, it is no guarantee.

- Women need to take special care to protect themselves.  Many women have given up careers and income to move in with a man, expecting a lifetime of support in return for taking care of a house and children.  Unfortunately, without a written agreement, a court may be more hesitant to enforce the man's promise to provide this support.  Even with a written agreement, a court may refuse to enforce the promises as a matter of public policy. 

Income Taxes

In addition to the question of expenses, couples should also think about the tax implications of living together versus marriage.  For single people, the tax rules are relatively simple.  Each person pays federal and (in 44 states) state income tax based on his or her net income.  (Some are eligible for special 'head of household' filing status.)  

For married people, things are a little more complicated.  Married couples may file a 'joint' return, combining their income and paying one tax bill.  Alternatively, the couple may 'file separate', much as if each was single.  

Unfortunately, the tax rates for a couple filing separately are not the same as for single people. Many two-income couples find that their total tax bill filing jointly exceeds their combined bills filing as single people.  This so-called 'marriage penalty' motivates many two-income couples to delay or avoid marriage.  You may need to examine your tax returns and consider different ways of filing to see if your taxes will go up or down upon marriage.

Social Security Benefits

Social Security pays two basic kinds of benefits to senior citizens: retirement benefits and survivor benefits.  This latter kind, survivor benefits, are paid to the widow or widower of a deceased person who was receiving retirement benefits.  Survivor benefits are paid until the recipient dies or remarries.  Many couples, particularly senior citizens, now choose to live together without marrying, rather than reduce these important survivor benefits.