ILNews

Formalizing relationships between unmarried couples

Jenny Montgomery
August 17, 2011
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United States Census figures show that between 2000 and 2010, the number of unmarried couples living together – both opposite-sex and same-sex – increased about 41 percent. With more than 7 million unmarried couples now sharing household responsibilities as if they were married, some have begun to think about how to plan together for worst-case scenarios.

snyder-natalie-mug Snyder

Natalie Snyder, a certified family law specialist for Cross Woolsey & Glazier in Carmel, said she has begun to see an increase in unmarried couples seeking cohabitation agreements, particularly among older couples.

“That probably follows, because if you’re going to have a cohabitation agreement – much like a premarital agreement – you’d need to have something to protect,” she said.

Many unmarried couples who Snyder sees are primarily interested in protecting their homes or businesses. She advises anyone in a long-term relationship – whether opposite- or same-sex – who is cohabitating to have this type of agreement on their radar.

“The risk is, if you don’t have an agreement in place, some court may separate all of your assets and debts in a way that you don’t want them divided,” she said.

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Stephen Sullivan, an attorney with Ball Fletcher Sullivan in Hobart, knows first-hand how helpful a cohabitation agreement can be when a relationship ends. He had one in place about 10 years ago, when he and his girlfriend bought a house.

“It was very encompassing – it had all sorts of things in there about how much each of us was going to contribute to the household,” he said. “She was making a lot less money than I was, so I couldn’t expect her to pay 50/50.”

When the couple parted ways, Sullivan kept the house and paid out equity to his ex-girlfriend through a formula that was included in the cohabitation agreement.

“One of the best parts about this is, the best time to be fair with each other is when you love each other,” Sullivan said. “When you’re breaking up, you have hurt feelings … and all those things are already decided and the hurt feelings don’t come into it.”

Families and the courts

In Indiana, unmarried couples who live together don’t have all of the rights that married people have. If, for example, one member of a domestic partnership were to suffer an incapacitating illness, his or her partner would not be able to make end-of-life decisions, because state law dictates that the closest next-of-kin makes those decisions. But creating a healthcare power of attorney and an appointment of healthcare representative would give a partner the legal right to make important decisions on behalf of his or her partner.

fletcher-wendy-mug Fletcher

Attorney Wendy Fletcher, who works with Sullivan, wrote about this issue in her paper, “No Marriage Equality Yet for the Hoosier State: But Some Protection Possible.” She cited In re Guardianship Atkins, 868 N.E.2d 878 (Ind.Ct.App. 2007), which originated from a dispute between a gay man and his partner’s estranged parents. The man’s partner – with whom he had been in a committed relationship for more than 20 years – was hospitalized in a coma, but the parents kept the comatose man’s partner from visiting him. The Indiana Court of Appeals ruled that the parents could not bar the man from hospital visitation, but only the parents were entitled to make healthcare and medical decisions for their son, per Indiana law.

Fletcher said that these issues are not unique to gay couples.

“One thing that I’ve always found interesting – particularly within the LGBT community – we see it as very discriminatory that we’re unable to get married (and enjoy the same rights as married people) without paying a lawyer to do it,” she told Indiana Lawyer. “But the same thing happens to unmarried heterosexual couples.”

Indiana courts have recognized the right of same-sex and opposite-sex couples to adopt children, but other matters associated with unmarried partners adopting children are decided on a case-by-case basis, Fletcher said. Cohabitation agreements can define guidelines for couples who adopt children and set ground rules for what would happen if the couple splits. Without such plans in place, those discussions may end up in courtrooms.

In Mariga v. Flint, No. 79A02-0407-CV-612, the Indiana Court of Appeals settled a long dispute between two women who were formerly partners. One partner had adopted the biological children of the other, and when the two separated, the adoptive parent attempted to vacate the adoption and appealed Tippecanoe County Superior Court’s determination that she should pay child support to her former partner. The appeals court upheld the previous rulings, finding that the adoption and child support order were valid.

In issuing the opinion in Mariga, Judge John G. Baker wrote: “This case requires us to examine the nature of parenthood. Whether a parent is a man or a woman, homosexual or heterosexual, or adoptive or biological, in assuming that role, a person also assumes certain responsibilities, obligations, and duties. That person may not simply choose to shed the parental mantle because it becomes inconvenient, seems ill-advised in retrospect, or becomes burdensome because of a deterioration in the relationship with the children’s other parent. To the contrary, of key importance is the relationship between parent and children, not between parent and parent.”•

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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