Thursday, February 25, 2010

So You Think Common-Law Marriage Will Protect You?

Since I keep getting surprised by people who think Indiana permits common law marriage (as well as other states), I offer Common-Law Marriage: A Nineteenth-Century Relic with Continuing Relevance:

"But here's the hitch: Common-law marriage is not allowed in most states today. During the middle of the Nineteenth Century, most states permitted common-law marriage. By 1931, however, only half the states still allowed common-law marriage. Today, that number is down to nine (plus the District of Columbia).

There are different possible explanations for the rise and fall of common-law marriage. In the Nineteenth Century, it functioned to validate marriages where some technical requirement was not met, and to make marriage available to those without ready access to clergy or a license. It also legitimated relationships in an era when non-marital sex was not only taboo, but often a crime."
If you want to live together, the only way to protect your property is to get a cohabitation agreement. Without a cohabitation agreement, relying on the courts is expensive and risky. With a cohabitation agreement in hand lessens the cost and riskiness of litigation.

Or as put by Sarasota Personal Injury Lawyer in Married Versus Cohabiting Couples:
Couples who are not married but live together can create a cohabiting agreement. This will protect both parties by recording whose assets are whose and any shared assets so that a decision can be made about the division of the assets if the couple were to break up. It will also determine which party will be responsible for things such as children or bills. Couples can record anything in these agreements, but generally homes, monetary assets, and children are recorded.

Couples will need to understand that the family laws for married couples and cohabiting couples are very different and play a big role in what happens upon a split up.
No, I cannot recommend that you not use a lawyer in writing up a cohabitation agreement. I think Personal Money Store explains quite well why not in Cohabitation Agreements Protect Unmarried Couples
When should an agreement be drafted and why is an attorney necessary?

It is generally recommended that a couple enter into a written cohabitation before moving in together. Committing an agreement to writing before cohabiting allows couples to clearly identify their financial boundaries, expectations, and future plans for wealth creation. Although anyone can draft any kind of an agreement for him or herself without legal assistance,it is not recommended that couples draft cohabitation agreements themselves.

When unwed couples separate and lawsuits ensue, cohabitation agreements that were not drafted by attorneys are frequently held to be invalid or unenforceable. Often this is because the agreements were so poorly drafted or were drafted in such a way that one or both parties may claim to have been treated unfairly.

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