Straight, Gay Couples Embrace Prenups (But Not Necessarily Marriage)
Not all couples put a ring on it, but living together without getting married doesn’t preclude the possibility of a prenup-like agreement - just in case love doesn’t last.
A survey of divorce attorneys who belong to the 1,600-member American Academy of Matrimonial Lawyers shows 48 percent have seen a rise in couples duking it out in court over the past five years.
Of those, 39 percent report an increase in the number of cohabitation agreements that protect property and other assets for partners living outside the perimeters of legally recognized marriages.
Rare in some areas of the country as recently as 15 or 20 years ago, such contracts are coming into their own, said Ken Altshuler, the group’s president-elect in Portland, Maine. "They’re really on the cutting edge of relationships today as more people move in together." The elite organization of divorce lawyers strongly advises cohabitation agreements for unmarried heterosexual couples along with same-sex partners whose unions are not legally recognized, especially when children are adopted by one but not both partners.
"To go to court to enforce your rights is just very expensive," said Susan Bender, a Manhattan lawyer who routinely handles cohabitation agreements for same-sex couples.
"Otherwise there’s litigation, the hiring of an attorney," she said. "It’s dispiriting to young couples to come into my office to begin their romantic relationship with figuring out who gets the IRA, but it makes so much sense."
Linda Lea Viken, the group’s outgoing president in Rapid City, S.D., said cohabitation agreements can protect an unmarried person’s stake in jointly owned property like a house or a condo and guard against seizure for payment of spousal debt.
"If we break up and there’s no agreement, I don’t have a claim," Viken said. "The litigation between two people who own a house together and aren’t married is much more difficult than two married people who are getting divorced." About 30 percent of the attorneys who responded to the survey said a majority of cohabitation agreements they draw up are for same-sex couples. With only a handful of states recognizing gay marriage, the agreements can spell out legal rights both in and out of state.
In recent years, fear over a partner’s debt pops up often among people asking Altshuler about legal shields outside of marriage.
"Most people who call me up who are cohabiting, they don’t think of it as a traditional prenup," he said. "They think of it in terms of how do I protect my assets? Can they come after my share of the house because of his credit card debt?" But the cohabitation agreements are not necessarily right for everyone.
Kelley Long is a freelance finance consultant in Chicago. She and her boyfriend, marketing executive Matthew Fenton, have been living together for a little more than a year. With help from the creation of a joint checking account, Long established standing as a domestic partner so she could qualify for health benefits through Fenton’s company-provided insurance.
The two sought legal advice on whether to execute a cohabitation agreement - he, to protect his much-higher salary, and she, to "just kind of delineate a division of duties, how things go while we’re together." Ultimately, she said, they decided to skip the legal formality.
"It came down to, well, if I have to protect myself against this stuff, we probably shouldn’t be living together," she said.