Handle common law marriage with a Relationship Agreement

This column first appeared in the Express News on June 29, 2016.

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Dear Mr. Premack: I am widowed, and have recently met a wonderful woman. We are both in our 70’s, have adult children, and have various assets that are adequate for our expenses. We are considering moving in together instead of getting married. If we do live together, is there a legal arrangement we should make? If we get married, how can we keep our financial lives separate? – E.K.

You are wise to consider the legal ramifications of creating a new intimate relationship. The law allows you to enter into a binding Relationship Agreement. The idea has been around a long time in the form of Nuptial Agreements.

A Nuptial Agreement is appropriate if you decide to marry. It defines the terms of the new marriage relationship and the ownership and use of assets. A Pre-Nuptial Agreement is created before the couple is legally wed. Or, if the couple gets married and later decides that an agreement is needed, they can do so in a Post-Nuptial or Partition Agreement. When no marriage is involved but the couple lives together, many of the same elements can be drafted into a Cohabitation Agreement.

A Relationship Agreement is a contract between you and your partner to define the way you intend to live your lives together. It is highly personal and flexible and may contain, but is certainly not limited to, provisions such as:

1. The division of property acquired during the cohabitation;

2. The separation of debts and liabilities;

3. The right to use a home or other piece of real or personal property;

4. Obligations to pay expenses such as rent or mortgage, utilities, and insurance;

5. Income, and maintaining its character as belonging to one of the cohabitants;

6. You and your partner’s intention whether or not to be married, and that there is no intent to be married unless a marriage license is obtained;

7. Mediation and dispute resolution clauses in the event that you and your partners are unable to work out a dispute on your own; and,

8. What should happen at the end of the relationship.

When considering your Relationship Agreement, consider all of the elements of how you want your relationship with your partner to function. The initial discussion will provide an opportunity for you and your partner to determine what you want from the relationship. If circumstances change in the future, the agreement can be modified or terminated by mutual consent, so you retain flexibility.

A well drafted Relationship Agreement may also assist you in preventing a court from deciding that you and your partner formed a common law marriage. If you stumble into a common law marriage, getting out would require judicial intervention to end the marriage and to distribute property. Common law marriage may also change inheritance rights and management during any future disability you may suffer. Your Relationship Agreement, combined with a proper Will or Trust, a Durable Power of Attorney, and Advance Medical Directives, can avoid these court battles and issues. See your estate planning attorney before you make any decisions about getting married or residing together.

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