ENFORCEABILITY OF COHABITATION AGREEMENTS IN FLORIDA [FLORIDA]

A recent article in the Estate Planning Journal provides some recommendations on drafting cohabitation agreements for unmarried couples (Goffe, Wendy S., Preparing Effective Cohabitation Agreements for Unmarried Couples). Such agreements are similar to the prenuptial and post-nuptial agreements entered into by their married counterparts. Such cohabitation agreements typically address expense sharing, how income will be shared or separated, how assets will be titled, and what happens to property upon termination of the relationship.

As noted in the article, what may come as a surprise to many is that cohabitation between unmarried persons, if there is a sexual relationship involved, is illegal in the State of Florida. More particularly, Florida Statutes Section 798.02 provides: "If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree…"

This raises the question whether a cohabitation agreement is enforceable in Florida, since arguably it is void as against public policy or because it is based on illegal consideration (the illegal relationship described in the above law).

This issue has not been fully resolved in Florida. The principal case in the area is Poe v. Levy's Estate, 411 So2d 253 (4^th DCA 1982). That case holds that if there is valid consideration (promises or other amounts paid) for an agreement between cohabitating parties aside from sexual relations, then the agreement will not be void. Therefore, if a Florida cohabitation agreement includes consideration outside of the sexual arena, then enforceability should not be an issue. However, there are not a lot of cases on the issue, so even though Poe supports this rule, if it comes up in other Florida appellate districts, a different result is possible.