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November 17, 2012
A world of legal problems can be avoided if you put your living together agreement in writing. A written contract identifying who owns what is the only way to protect yourself and honor your collective intentions — whether you want to keep all your property separate or share some or all of it. You may face serious and potentially expensive battles if you separate and can’t agree on how to divide what you have acquired.
Putting your contract in writing does not need to be a dreaded or time-consuming. Approach the task in the spirit of clarifying your understanding and preserving the shared memory of two fair-minded people.
Often, one or both partners is reluctant to sign a contract because they believe it demonstrates a lack of trust in the other partner’s word. On the contrary, it’s a healthy dose of realism, recognizing that over long periods of time, recollections fade and feelings change. A written contract alleviates you of the worry that your original intentions won’t be later forgotten.
Without a written contract, it is near impossible to enforce a claim of an oral contract in court. If your partner isn’t willing to sign an agreement, don’t rely on the oral promise.
It is best to seek a lawyer’s help before signing any agreement that involves a lot of money or property — or complicated estate planning. Contact Michigan estate planning attorney Marc Wander, today.
Read more:
http://www.nolo.com/legal-encyclopedia/free-books/living-together-book/chapter2-5.html
Marc H. Wander is a partner of the Bloomfield Hills law firm of Witzke, Berry, Carter &Wander, PLLC. Marc has been licensed to practice law in Michigan since 1992. Marc’s practice is devoted to estate planning and business succession planning. Marc is a member of the Probate and Estate Planning Section of the State Bar of Michigan and is a prior Chairperson of the Oakland County Bar Association Tax Committee. He is a frequent continuing education speaker to insurance agents, financial advisors, CPA’s and financial industry organizations. He has also been heard on WJR Radio. Follow Marc on Twitter @MarcWander
Filed under: Cohabitation Agreement,Estate Planning — Tags: "Asset Protection", "Cohabitation Agreement", "Gay", "Living Together Contract", "Marc Wander", "Michael P. Witzke", "Michigan Estate Planning Lawyer Blog", "Nonmarital Agreement", "Same-Sex Couples", "Witzke Berry Carter & Wander", Michigan — Christopher J. Berry @ 7:12 pm
In the event of death or breakup without a cohabitation agreement, you and your partner may be treated as legal strangers.
If you have chosen cohabitation over marriage – you aren’t alone. Cohabitation between married partners has increased 1,150 percent in the last 40 years. The fact remains that, unless you define your partnership through a legal contract, the law may see you as strangers in the case of a breakup or death.
What is Cohabitation?
The concept of cohabitation has expanded to include any two partners who have integrated their residence, property and daily lives. It can be viewed as a starting point for people considering marriage down the line, but can also be the ideal arrangement for couples who don’t want the social, personal and legal commitment associated with marriage. Other reasons individuals cohabitate include:
- Reduction of living expenses.
- Inability of a union of same-sex individuals to be recognized by the law.
- Choice by older individuals who don’t want to upset family or friends through remarriage.
The need for Cohabitation Agreements.
By choosing cohabitation, couples forego certain rights and protections that would be provided for them in a marital union. Married couples accrue legal rights, including the right to receive a property settlement and/or support in the event of divorce; file joint tax returns; receive distributions from estates free of estate tax; receive survivor’s benefits from retirement plans and Social Security; obtain “family” health insurance, dental insurance, and other employment benefits; and automatically share in his/her partner’s property in the event he/she dies without a will. Unmarried couples, generally acquire similar rights by expressly securing their benefits in cohabitation agreements (also referred to as cohabitation contracts). A cohabitation agreement is a private contract between cohabitants, which typically tries to establish contractually for the parties the rights and obligations that married people obtain by custom, statute, and agreement.
Why a Cohabitation Agreement?
Even if you regard your partner as family, the law usually does not. As a result, your partner may not be provided for in the manner you desire. For example, if you die without a will, your property generally will pass to your next-of-kin and not your partner. Paradoxically, the law may provide certain benefits for your partner that you had no intention of giving to him or her. Today, some courts are using equitable doctrines to apportion assets between cohabitants to prevent hardship and injustice. Because these doctrines are vague,proving them is both difficult and expensive. Therefore, you should be proactive and define your own partnership through a legal contract. Below are additional benefits of entering into cohabitation agreements:
- To guarantee the financially less secure partner an equitable settlement.
- To properly compensate a party for his or her role as a caretaker
- To allow the financially more secure party to limit exposure in the event of a breakup.
- To disclose expectations of the relationship, both financial and personal.
What to cover in a Cohabitation Agreement?
A cohabitation agreement is a flexible, laissez faire document that is less subject to regulation than a marital agreement. These contracts typically cover the following key points:
- Distributing property in case of death or breakup.
- Obligating financial support during the relationship or upon its dissolution.
- Handling the payment of debts.
- Dividing the principal residence upon breakup of the relationship or if one of you dies. Setting up the property ownership as ‘joint tenants with rights of survivorship’ will allow your partner to stay in your shared home. You’ll also want to be sure both of your names are on the deed.
- Defining support, custody or visitation rights for minor children (although nonbinding).
- Specifying health insurance coverage. Create a ‘health care proxy’ that will allow your partner to make decisions about your health care in case of emergency.
- Determining the right to serve as guardian/conservator in the event of incapacitation.
- Establishing the right to make medical decisions.
What’s the difference between a Cohab and a Prenup?
Prenups and cohabs compare like apples and oranges. A cohab will NOT have the same force and effect after marriage as a prenup. Most states have adopted legislation prescribing specific requirements for prenups, while very few states have adopted laws dealing with cohabs. As a result, cohabs are governed almost exclusively by general contract principles. Please remember that while a prenup goes into effect only upon marriage, a cohab usually isn’t valid once the parties marry.
The Commitment Conversation:
Are you in a long term relationship or do you know someone who is building one? In an effort to help individuals and couples feel more comfortable in discussing their lives together, we’ve created a guidebook to help you and your partner navigate through conversations that will strengthen your lives together.
AN IMPORTANT NOTE:
Living together does not automatically entitle either one of you to the rights and protections afforded to married couples. That is why you and your partner must state your rights and obligations in a legal document in the event of a breakup or death. A cohabitation agreement will insure that you and your partner are protected at the same time that it clarifies your understanding of the relationship.
Contact attorney Marc Wander to set up a cohabitation agreement.
Read more:
http://www.equalityinmarriage.org/bmagreements.html
Marc H. Wander is a partner of the Bloomfield Hills law firm of Witzke, Berry, Carter &Wander, PLLC. Marc has been licensed to practice law in Michigan since 1992. Marc’s practice is devoted to estate planning and business succession planning. Marc is a member of the Probate and Estate Planning Section of the State Bar of Michigan and is a prior Chairperson of the Oakland County Bar Association Tax Committee. He is a frequent continuing education speaker to insurance agents, financial advisors, CPA’s and financial industry organizations. He has also been heard on WJR Radio. Follow Marc on Twitter @MarcWander
November 2, 2012
Filed under: Asset Protection,Nonmarital Agreement — Tags: "Asset Protection", "California", "Cohabiting Couples", "Estate Planning", "Gay Couples", "Living Together Agreement", "Marc Wander", "Marvin Vs Marvin", "Michigan Estate Planning Lawyer Blog", "Nonmarital Agreement", "Witzke Berry Carter & Wander" — Christopher J. Berry @ 5:33 pm
While living together contracts are sometimes made to protect each partner in the event of a breakup, more commonly, couples enter into them to communicate their needs and expectations, define their rights, and enhance one or both partners’ peace of mind at either the start of the relationship or when the couple makes a major purchase. By creating a well-crafted agreement, not only do you gain a better understanding of how you really want to own your property, but it also serves as a useful reminder if misunderstandings develop later or one of you perishes without a will. An additional benefit of a living together agreement is that if one partner is supporting the other, or if one partner has given up a career in order to take care of the home or raise children, the agreement will protect the dependent partner by ensuring that issues of support and compensation are stated in writing.
If you are in a long-term and serious partnership you should consider the legal consequences of dealing with money and property. If you plan to mix assets or share expenses, you should put your agreement in writing, especially if a lot of money is involved. If neither of you have any money, with no property and little prospects on the horizon, there is still benefit in deciding how money and or property will be dealt with if it one day arrives. In addition, practical issues of day-to-day living like how expenses will be paid can be established at this time.
A written agreement, though no substitute for trust and communication, is essential and can do wonders to reduce paranoia and confusion and help people deal with one another fairly. While there aren’t any national statistics on the number of unmarried, cohabiting couples enter into living together contracts, some lawyers say such contract are rising as a result of more couples living together and new legal rulings that support the validity of living together agreements.
Legal Rules Governing Living Together Contracts
Predominantly, courts and judges — not legislatures — have made the legal rules governing living together contracts. The leading court case is the well-known Marvin v. Marvin, 557 P .2d 106, decided by the California Supreme Court in 1976. It involved the actor Lee Marvin and the woman he lived with, Michele Triola Marvin; who used his last name even though they were not married. In its Marvin case decision, the court announced what later became the common legal principles governing the right of unmarried couples to make contracts. First, the court ruled that marital property laws do not apply to couples who are not legally married. Next, it recognized that unmarried couples are here to stay, and finally, the court declared four contract principles:
- Unmarried couples may make written contracts.
- Unmarried couples may make oral contracts.
- If a couple hasn’t made a written or oral contract, the court may examine the couple’s actions to decide whether an “implied” contract exists.
- If a judge can’t find an implied contract, she may presume that “the parties intend to deal fairly with each other” and find one partner indebted to the other by invoking well-established legal doctrines of equity and fairness.
In the aftermath of the courts Marvin ruling in California, other states have upheld the application of these principles made by unmarried partners — both straight and gay. Based on the state, however, a court may abide to different legal rules. Nearly every state’s courts and the District of Columbia now enforce written contracts between unmarried partners; with Illinois, Georgia, and Louisiana as exceptions. Additionally, most states also recognize oral contracts; Texas and Minnesota are the only states that have passed laws requiring contracts to be in writing; while New York and New Mexico have been unwilling to recognize implied contracts.
You can avoid a host of legal problems by putting your living together agreement in writing. Contact attorney Marc Wander to do so, today.
Read more:
http://www.nolo.com/legal-encyclopedia/free-books/living-together-book/chapter2-5.html
Marc H. Wander is a partner of the Bloomfield Hills law firm of Witzke, Berry, Carter &Wander, PLLC. Marc has been licensed to practice law in Michigan since 1992. Marc’s practice is devoted to estate planning and business succession planning. Marc is a member of the Probate and Estate Planning Section of the State Bar of Michigan and is a prior Chairperson of the Oakland County Bar Association Tax Committee. He is a frequent continuing education speaker to insurance agents, financial advisors, CPA’s and financial industry organizations. He has also been heard on WJR Radio. Follow Marc on Twitter @MarcWander
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