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.

sullivan-stephen-mug Sullivan

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. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  2. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

  3. She must be a great lawyer

  4. Ind. Courts - "Illinois ranks 49th for how court system serves disadvantaged" What about Indiana? A story today from Dave Collins of the AP, here published in the Benton Illinois Evening News, begins: Illinois' court system had the third-worst score in the nation among state judiciaries in serving poor, disabled and other disadvantaged members of the public, according to new rankings. Illinois' "Justice Index" score of 34.5 out of 100, determined by the nonprofit National Center for Access to Justice, is based on how states serve people with disabilities and limited English proficiency, how much free legal help is available and how states help increasing numbers of people representing themselves in court, among other issues. Connecticut led all states with a score of 73.4 and was followed by Hawaii, Minnesota, New York and Delaware, respectively. Local courts in Washington, D.C., had the highest overall score at 80.9. At the bottom was Oklahoma at 23.7, followed by Kentucky, Illinois, South Dakota and Indiana. ILB: That puts Indiana at 46th worse. More from the story: Connecticut, Hawaii, Minnesota, Colorado, Tennessee and Maine had perfect 100 scores in serving people with disabilities, while Indiana, Georgia, Wyoming, Missouri and Idaho had the lowest scores. Those rankings were based on issues such as whether interpretation services are offered free to the deaf and hearing-impaired and whether there are laws or rules allowing service animals in courthouses. The index also reviewed how many civil legal aid lawyers were available to provide free legal help. Washington, D.C., had nearly nine civil legal aid lawyers per 10,000 people in poverty, the highest rate in the country. Texas had the lowest rate, 0.43 legal aid lawyers per 10,000 people in poverty. http://indianalawblog.com/archives/2014/11/ind_courts_illi_1.html

  5. A very thorough opinion by the federal court. The Rooker-Feldman analysis, in particular, helps clear up muddy water as to the entanglement issue. Looks like the Seventh Circuit is willing to let its district courts cruise much closer to the Indiana Supreme Court's shorelines than most thought likely, at least when the ADA on the docket. Some could argue that this case and Praekel, taken together, paint a rather unflattering picture of how the lower courts are being advised as to their duties under the ADA. A read of the DOJ amicus in Praekel seems to demonstrate a less-than-congenial view toward the higher echelons in the bureaucracy.

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