Monday, December 8, 2008

Living Together - The Legal Problems by Way of Tennessee

I have been writing about Indiana's law for those living together since the start of this blog.  Follow the "cohabitation" link below this post to see all of those articles.

Reading The Tennessean's Cohabiting couples' splits test the courts, I thought this is a pretty good summing up of Indiana's problems of dealing with unmarried couples living together.

As the number of adults who opt to purchase homes, have children and start businesses together without getting married rises, these types of "common-law kerfuffles," as some courthouse observers call them, are testing the legal system's ability to adapt to new ways people live.
I am not going to hear them called "common-law kerfuffles." Not many lawyers around now from the days when Indiana did have common-law marriages. But the cause of the problem remains the same: people change behaviors and the law has not caught up with the changes. Until the legislature creates something out of whole clothe we are left with the decisions of judges.

And the subject of these cases is the same between Indiana and Tennessee:
"After the split, some of them have to come to court and resolve what's left between them — that's the property," said Judge Bill Higgins, a senior Davidson County General Sessions Court judge on the bench since 1980. "Who gets the TV and who gets the bedroom suite and who gets Fido."
The newspaper gave an example:

And while some of these unions will result in marriage, others will end like Mark Ownby and Sabrina Oberlander's did. Court documents show Ownby believed his ex-girlfriend would sign over sole ownership of their Percy Priest Lake-area house when she moved out. Oberlander thought Ownby would pay the mortgage and hand over her prized and practical possessions — her childhood Christmas ornaments; the washer and dryer; and the cats, Mr. Kitty and Sebastian.
Instead, the one-time cohabiting couple were ordered in August to stay away from each other. Oberlander filed a civil suit against Ownby in September. The house wound up near foreclosure, and Ownby and Oberlander have been in and out of court.
"This has really been unbelievable at points," Ownby said. " ... I mean, we had verbal agreements about everything. Then, the next thing I know, there's this suit."

Okay, oral contracts may not be as worthless as the paper on which they are written, but it is so much easier to enforce them. (Take a look at Wiseacre Blog's Is an Oral Contract as Good as a Written Contract?).

On the other hand, it appears cohabitation agreements are not any more popular in Tennessee:

Prenups are pretty popular around here," said Rogers, who was voted "best of the family law bar" by Nashville lawyers this year. "But I've not had people call me and ask beforehand what they can do if their boyfriend kicks them out. I wish they would because living together, at least legally, is pretty risky."
Every cohabiting couple should put on paper what they feel in their hearts and have been assuming in their heads, Hertz said.
"If ain't on paper," he said, "it ain't real."

I urge those living together to get a written cohabitation agreement. No one has ever contacted me about one. I still offer them. I just do not expect any takers. Instead of spending a little amount for an agreement, they will be paying a lot for litigation.
The Tennessee article points out just how much of a crap shoot it is to litigate one of these cases. I have one that will go to trial next year because of it being tied up in other issues. I think we have a good case but would feel so much better if I had a cohabitation agreement as a base.
If you are living together in Indiana and want to mix assets and income but not get married (or cannot), then get a cohabitation agreement. Do all that can that can be done to protect yourself economically. Especially with the our uncertain economic future, you need to protect yourselves. If you are living together in Indiana, please give me a call about creating a cohabitation agreement for you.

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