Unmarried in South Carolina? Are Your Assets Truly Protected?

Navigating Unmarried Partnerships: The Power of a Cohabitation Agreement in South Carolina

In South Carolina, the legal landscape for couples who choose to live together without marriage is distinct. Unlike some other states, South Carolina does not recognize common law marriage, regardless of how long a couple has lived together or how they present themselves to the public. This fundamental principle means that unmarried partners, even those in long-term, committed relationships, do not automatically acquire the same legal rights and protections as married spouses. This is precisely why a cohabitation agreement becomes an indispensable tool for clarity, protection, and peace of mind.

A cohabitation agreement, often referred to as a “living together agreement” or “non-marital agreement,” is a legally binding contract entered into by two individuals who live together or plan to live together but are not married. It allows partners to define their rights and responsibilities during their relationship and, crucially, how their assets, debts, and support will be handled if the relationship ends. For South Carolina residents, this proactive legal planning is not just advisable; it's often essential.

Why a Cohabitation Agreement is Crucial in South Carolina

Without the legal framework of marriage, unmarried partners in South Carolina are largely left to rely on general contract law, property law, and specific statutory provisions to resolve disputes. This can lead to complex, costly, and emotionally draining legal battles if the relationship dissolves. A cohabitation agreement bridges this gap, offering a clear roadmap for your shared life and potential separation.

South Carolina's Stance on Unmarried Couples: No Common Law Marriage

Let's be unequivocally clear: South Carolina abolished common law marriage on July 24, 2019. Any common law marriage claimed to have been created after this date is invalid. For relationships formed before this date, the couple must prove they met the stringent requirements for common law marriage before July 24, 2019. This means that for the vast majority of cohabiting couples today, there is no automatic legal recognition of their partnership. This lack of default legal protection makes a cohabitation agreement even more vital.

• 🛡️ No Automatic Property Division: In a divorce, South Carolina's equitable distribution laws dictate how marital property is divided. For unmarried couples, no such framework exists. Assets are generally distributed based on whose name is on the title or who can prove ownership, which can be difficult for jointly acquired property.
• 💸 No Automatic Spousal Support: There's no equivalent to alimony or spousal support for unmarried partners in South Carolina. If one partner sacrificed their career or made significant financial contributions to the other's success, they have no legal recourse for support upon separation without a prior agreement.
• 👶 Parental Rights & Responsibilities: While a cohabitation agreement can't dictate child custody or support (which are determined by the court based on the child's best interests), it can address financial contributions towards child-related expenses not covered by court orders, or how a non-biological parent might contribute.
• 🏡 Home Ownership & Shared Living Expenses: Who owns what percentage of the home? How are mortgage, utilities, and maintenance paid? What happens if one person wants to sell? These are critical questions addressed by an agreement.

What a South Carolina Cohabitation Agreement Can Cover

A well-drafted cohabitation agreement is highly customizable, allowing partners to tailor it to their specific needs and circumstances. It can address a wide array of financial and property matters, providing clarity and preventing future disagreements. Here are some key areas:

1. 💰 Asset Division:
   • 🏠 How jointly owned real estate (e.g., a home purchased together) will be divided or handled upon separation, including who retains ownership, buy-out clauses, or sale procedures.
   • 🚗 Division of personal property, vehicles, and other valuable assets acquired during the relationship.
   • 📈 Clarification of separate property brought into the relationship by each partner, ensuring it remains separate.
   • 🎁 How gifts exchanged between partners or received from third parties will be treated.
2. 📊 Financial Responsibilities During the Relationship:
   • bills, utilities, rent/mortgage payments, and other household expenses.
   • 🏦 How joint bank accounts will be managed and what happens to funds upon separation.
   • 💳 Responsibility for joint and individual debts, including credit cards, loans, and mortgages.
   • 💵 Contributions to savings, investments, and retirement accounts.
3. 🤝 Support Upon Separation:
   • If one partner will provide financial support to the other after the relationship ends, and under what conditions (e.g., for a specific duration or amount). This is voluntary and contractual, as no legal obligation exists otherwise.
   • Reimbursement for contributions made to the other partner's education or career advancement.
4. 🏥 Healthcare Decisions:
   • While not a substitute for formal medical directives, an agreement can express intentions regarding medical decision-making or visitation rights, especially if combined with a healthcare power of attorney.
5. 🐾 Pet Custody:
   • Who will retain ownership and care for pets if the relationship ends.
   • Arrangements for shared custody or financial contributions to pet care.
6. 📜 Dispute Resolution:
   • Provisions for mediation or arbitration to resolve future disputes, rather than costly litigation.

Hypothetical Cases: The Value of an Agreement in Action

Case 1: The Shared Home & Unequal Contributions

Sarah and Mark move in together in Charleston. They decide to buy a house, with Sarah putting down 70% of the down payment from her inheritance and Mark contributing 30%. They agree to split the mortgage and other household expenses 50/50. Five years later, their relationship ends. Without a cohabitation agreement, Sarah faces an uphill battle to recover her disproportionate down payment. Mark might argue he's entitled to 50% of the equity increase because they split the mortgage evenly. A judge might have to untangle ownership interests based on financial contributions and market value, a complex and expensive process. However, if they had an agreement stating Sarah would be reimbursed her initial down payment amount (or a percentage of the equity reflecting her higher initial investment) before the remaining equity was split, the separation would be significantly smoother and less contentious. This could mean a difference of tens of thousands of dollars in dispute.

Case 2: Career Sacrifice & Support Expectations

David and Emily live together in Columbia. Emily, a talented graphic designer, puts her career on hold to support David as he pursues a demanding startup venture, taking on most of the household responsibilities and living off David's increasing income. After seven years, the startup takes off, but their relationship falters. Emily finds herself without recent work experience and limited savings. In a marriage, Emily might have a claim for rehabilitative alimony. As an unmarried partner in South Carolina, without an agreement, she has no legal claim to ongoing financial support from David, despite her significant contributions to his success and their shared life. A cohabitation agreement could have stipulated that if the relationship ended after a certain period, David would provide Emily with a lump sum payment or monthly support for a specified time to help her re-establish her career, potentially ranging from a few thousand dollars for a short period to a more substantial sum like $20,000-$50,000 depending on the duration and standard of living, preventing protracted disputes and potential financial hardship for Emily.

Steps to Create a Valid South Carolina Cohabitation Agreement

Creating a legally sound cohabitation agreement in South Carolina involves careful consideration and adherence to specific principles to ensure its enforceability.

1. 🗣️ Open and Honest Communication: The first step is for both partners to have an open discussion about their expectations, financial situations, and desires for the future, both together and separately.
2. 📝 Full Financial Disclosure: Both parties must fully and honestly disclose all assets, debts, income, and financial obligations. Failure to do so can lead to the agreement being challenged or invalidated later.
3. ⚖️ Independent Legal Counsel: It is strongly recommended, and often essential for enforceability, that each partner retains their own independent attorney. This ensures both parties fully understand the terms, their rights, and the implications of signing the agreement, and that there is no undue influence or coercion.
4. ✍️ Written and Signed: The agreement must be in writing and signed by both parties. It should also be notarized to confirm the identities of the signers.
5. 🧐 Fair and Reasonable Terms: While courts generally uphold contracts, an agreement with extremely one-sided or unconscionable terms might be challenged and potentially set aside by a judge, especially if there was a lack of full disclosure or independent counsel.

Common Mistakes to Avoid

While the intent behind a cohabitation agreement is to protect, certain missteps can undermine its effectiveness.

• ❌ Delaying the Agreement: Waiting until the relationship is already strained or nearing its end makes it far more difficult to negotiate terms amicably and fairly. It's best to create the agreement early in the cohabitation.
• ❌ "Do-It-Yourself" Agreements: Using generic templates found online or drafting the agreement without legal guidance is risky. South Carolina law has specific requirements for valid contracts, and a lawyer can ensure your agreement is enforceable and addresses all state-specific nuances.
• ❌ Lack of Full Disclosure: Hiding assets or debts from your partner will likely invalidate the agreement if discovered later. Transparency is key.
• ❌ One-Sided Terms: An agreement that is grossly unfair or was signed under duress is vulnerable to challenge in court. Both parties should feel the terms are reasonable.
• ❌ Ignoring Future Changes: Life circumstances change. While you can't predict everything, consider including clauses for review or amendment, or simply plan to revisit the agreement periodically (e.g., every 5 years or upon significant life events like a major purchase, career change, or birth of a child).
• ❌ Not Getting Independent Legal Advice: This is perhaps the biggest mistake. Even if you trust your partner completely, having your own lawyer protects your individual interests and ensures you fully understand what you're signing.

The Costs: Agreement vs. Litigation

Many couples hesitate at the initial legal fees associated with drafting a cohabitation agreement. However, these costs are typically a fraction of what you could face in litigation without one.

• ✅ Cost of a Cohabitation Agreement: The legal fees for drafting a comprehensive cohabitation agreement in South Carolina, with independent counsel for both parties, can range from $2,500 to $7,500 or more, depending on the complexity of your assets, the number of issues to address, and the attorneys' hourly rates. This upfront investment ensures clarity and significantly reduces future risk.
• ⚠️ Cost of Litigation Without an Agreement: If your relationship ends and you haven't defined asset division or support, you could be looking at a contentious legal battle. Attorney fees for a contested property dispute, especially one involving real estate or significant assets, can easily run into $10,000 to $50,000, or even well over $100,000 for highly complex and prolonged cases. This doesn't include the emotional toll, lost time, and potential for an unfavorable court outcome.

Consider the cost of an agreement as an insurance policy. It protects your financial future and provides a clear, pre-determined path during an emotionally challenging time, saving you immense stress and potentially hundreds of thousands of dollars in protracted legal battles.

Key Deadlines (or Lack Thereof)

Unlike divorces, where specific deadlines for filing or responding exist, there aren't "key deadlines" for a cohabitation agreement in the same way. However, the most critical "deadline" is to get one in place before any significant assets are commingled, joint purchases are made, or financial sacrifices begin. The longer you wait, the more complicated the financial entanglements become, and the harder it is to agree on terms if the relationship is already under strain. Procrastination is a significant risk here.

Conclusion: Take Action to Protect Your Future

For unmarried couples in South Carolina, a cohabitation agreement is not a sign of distrust; it's a testament to responsible planning and mutual respect. It provides a clear legal framework that the state's laws do not automatically offer, safeguarding your individual interests while strengthening your partnership by fostering transparency. Don't leave your financial future to chance or the complexities of a legal system not designed for your specific relationship structure. If you're living with a partner or considering it, consult with an experienced South Carolina family law attorney to discuss how a cohabitation agreement can benefit you and provide peace of mind.

Disclaimer: This article provides general information about cohabitation agreements in South Carolina and should not be considered legal advice. The law is complex and constantly evolving. Each individual's situation is unique, and the information presented here may not apply to your specific circumstances. For legal advice tailored to your needs, you must consult with a qualified South Carolina attorney. Reviewing this article does not create an attorney-client relationship.