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Unmarried Same-Sex Partners and Oral Cohabitation Agreements: What Florida Law Allows

gay coupleMarriage equality for same-sex couples has existed in Florida for two years, ever since the U.S. Supreme Court’s Obergefell v. Hodges decision. The first state to recognize same-sex marriage was Massachusetts, and it did so just over a decade ago. Same-sex couples in committed relationships have existed for much longer than either of those dates, of course. Sometimes, these couples entered into agreements related to providing financial support for each other. In a recent case originating in Broward County, the courts were asked to decide whether or not two men in a decades-long relationship had also created an “oral cohabitation agreement” and, if so, if that agreement entitled one man to a large award of damages.

Anthony and Richard met as young men. Within a few years, they had decided they should work together and live together. They had a detailed discussion to set out the terms of how they would “take care of” and provide for each other, both emotionally and financially. They agreed to pool all of their wealth to go toward paying ”current and future expenses.” The agreement acknowledged that they were “just like a married couple.”

For 46 years, that’s how things went. They had a blessing ceremony and held anniversary parties. They moved from Rhode Island to South Florida to retire here. However, in 2013, Anthony sued Richard. Anthony asked the court to partition the home they owned together as joint tenants with right of survivorship. Richard filed a counterclaim, asking the judge to award him damages related to support under the terms of the cohabitation agreement. Specifically, Richard asked the court to award him an amount equal to roughly one-half of the total sum contained in five Wells Fargo accounts, which would mean an award of just over $500,000. Ultimately, the trial court sided with Richard and awarded him $750,000.

Anthony appealed, but the appeals court concluded that the trial court was not in error by granting Richard a damages award. The key piece of Florida law that allowed Richard to recover damages was the long-standing rule that “unmarried cohabitants may agree to enter into an enforceable contract that establishes rights and responsibilities towards each other as long as it is clear there [is] valid, lawful consideration separate and apart from any express or implied agreement regarding sexual relations.” These types of cohabitation agreements are valid regardless of whether the couple is heterosexual, same-sex, or a platonic pair.

Additionally, Florida’s Statute of Frauds is a law that governs which formalities must be present to make a contract enforceable. There is nothing in that law that says that a cohabitation agreement, like the one between Anthony and Richard, has to be in writing. This meant that the trial court in this case was not mistaken in ruling that couples generally may enter into oral cohabitation agreements.

The appeals court also concluded that there was enough evidence to support the trial court’s ruling recognizing the existence of an oral contract between these two men. Richard gave detailed testimony on the stand about how they agreed to combine all of their assets, investments, income, and inheritances and agreed that this combined wealth would be used to pay all of their expenses, present and future. Additionally, Richard had ample proof that, for more than four decades, the two men did exactly that, amassing wealth together as a couple and paying all of their expenses together as a couple.

The appeals court did give Anthony a partial victory, however, ruling that the proper amount of damages Richard should have received was the $509,000 he originally sought, rather than the $750,000 the trial court awarded.

Even if you’ve never married or had children, that doesn’t mean that family law issues can’t affect your life. Many unmarried couples, both same-sex and opposite-sex, may have established agreements related to property division, support, or other domestic relations issues. To make sure that your rights under the law are fully protected, talk to the experienced South Florida same-sex divorce attorneys at Sandy T. Fox, P.A. Our team has been helping all kinds of clients address and resolve all types of family law disputes. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Same-Sex Couples, Custody Rights, and Timesharing in Florida, Fort Lauderdale Divorce Lawyer Blog, Oct. 21, 2014

Groundbreaking US Supreme Court Case Clarifies Status for Same-Sex Couples Seeking to Divorce in Florida, Fort Lauderdale Divorce Lawyer Blog, July 8, 2015