A Legal Guide for Unmarried Couples
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Frederick Hertz, Attorney; Ralph Warner, Attorney; and Toni Ihara, J.D.
February 2013, 15th Edition
Living together out of wedlock can mean anything, especially in court -- unlike married couples, most unmarried couples don't automatically inherit or receive protection under the law. Consequently, you must document everything from property ownership and children to wills and other estate plans.
An essential resource for any unmarried couple, Living Together explains:
- the legality of living together
- having and raising children
- the many types of ownership agreements
- relationships with a prior family
- getting authorization to make medical decisions for an ill or injured partner
Living Together includes:
- a complete overview of important legal documents, including a living together contract
- instructions to filling out these documents
- sample forms
- legal agreements
This edition provides the latest law in readable 50-state charts, and includes many fill-in-the-blank legal forms. It also discusses the laws covering same-sex marriages and civil unions, which are often so broad, they affect unmarried heterosexual couples as well.
“Here’s what you need to know to prevent surprises that can be both expensive and nasty.”
-Kiplinger's Personal Finance Magazine
“Provides lots of practical advice and also includes information about various state laws relating to unmarried couples.”
“A detailed and useful guide for couples.”
-Los Angeles Times
- Agreement of Joint Intent Not to Have a Common Law Marriage
- Agreement to Keep Property Separate
- Attachment A (Separately Owned Property)
- Agreement to Share Property
- Attachment B (Jointly Owned Property)
- Agreement for a Joint Purchase
- Agreement Covering Rented Living Space
- Letter Requesting Permission to Add a Roommate
- Contract for Equal Ownership of a House
- Promissory Note
- Contract for Unequal Ownership of a House
- Agreement for One Person to Move Into the Other's House and Become an Immediate Co-Owner
- Agreement for One Person to Move Into the Other's House and Become a Co-Owner Gradually
- Acknowledgment of Parenthood
- Short-Term Agreement Regarding Separation and Housing
- Agreement to Protect Property During a Split-Up
- Agreement to Mediate and Arbitrate
- Home Buyout Agreement
Ralph "Jake" Warner, a pioneer of the do-it-yourself law movement, founded Nolo with Ed Sherman in 1971. Nolo began publishing do-it-yourself law books written by Jake and his colleagues after numerous publishers rejected them. When personal computers came along, he added software to many Nolo books. When the Internet arrived, he championed the move online, where Nolo published huge amounts of free legal information.
In addition to running Nolo for much of its first 40 years, Warner was an active editor and author. He wrote many books, including Retire Happy: What You Can Do Now to Guarantee a Great Retirement and Save Your Small Business: 10 Crucial Strategies to Survive Hard Times or Close Down & Move On. Today, he operates a storytelling repertory group, Jake's Tales, devoted to keeping alive the tradition of telling children wonderful stories.
Warner holds a law degree from Boalt Hall School of Law at the University of California at Berkeley and an undergraduate degree in history from Princeton.
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TABLE OF CONTENTS
The Legal Companion for Unmarried Couples 1
The Legal State of Living Together 7
Sex and the Law 8
Domestic Partners 10
Common Law Marriage 13
Living Together Contracts 17
Why You Need to Put Your Living Together Agreement in Writing 24
What Happens to Your Written Living Together Agreement
If You Get Married? 27
Special Issues for Seniors 30
Living Together Agreements: Why and How 33
Ten Tips for Writing a Living Together Agreement 37
Property Agreements 41
Agreement to Share Ownership of a Joint Purchase 55
Agreement Covering Joint Projects 63
Agreement Covering Homemaker Services 65
Agreement for Artists, Writers, and Inventors 69
Agreement for People in School 73
Agreement to Protect Person Who Moves a
Long Distance or Gives Up a Job 76
Debt, Credit, Taxes, and More:
Practical Aspects of Living Together 79
Debt and Credit 81
How (and Why) to Check Your Credit Report 83
Buying and Investing Together 87
Sharing Your Last Name 95
Income Taxes 97
Social Security 100
Retirement Plans 102
Public Benefits 105
Liability for Medical Care of a Partner 111
Making Medical and Financial Decisions for Your Partner 111
Wrongful Death and Loss of Consortium Lawsuits 115
Renting and Sharing a Home 117
Discrimination on the Basis of Marital Status 118
Leases and Rental Agreements 121
Moving In Together 122
Dealing With Objections When Moving Into the
Rental Home of One Partner 128
Getting Your Security Deposit Back 134
Buying a House Together 137
May Sellers Discriminate Against Unmarried Buyers? 140
How to Find and Work With a Real Estate Agent 141
Househunting Online 143
Home Financing and Mortgages 144
Proceeding With Your Purchase: Offers, Inspections, Escrow, and Closing 153
Taking Title to Your New Home 156
Contracts for Couples Owning a Home Together 164
Contracts for Equal Ownership of a House 167
Contract for Unequal Ownership of a House 181
Agreement for One Person to Move Into the Other's House
and Become an Immediate Co-Owner 187
Agreement for One Person to Move Into the Other's House and
Become a Co-Owner Gradually 194
Starting a Family 201
Having a Child: Legal Obligations of Unmarried Parents 202
Naming the Baby and Getting a Birth Certificate 203
Naming the Father: Paternity 204
Legitimacy of Children Born to Unmarried Parents 208
Adopting a Child 213
Public and Private Benefits for a Child of Unmarried Parents 217
Inheritance Rights of a Child of Unmarried Parents 218
You and Your Ex-Spouse and Children
From a Prior Relationship 221
Getting a Divorce While Living With Someone Else 223
Living Together and Impact on Custody of Children
From a Prior Marriage 229
Visitation With Children From a Prior Marriage 236
Child Support for Children From a Prior Marriage 237
The Effect of Living Together on Alimony and Child Support
From a Prior Marriage 239
Wills and Estate Planning 243
What Happens If You Don't Do Any Estate Planning? 244
Typical Estate Plans 245
Figuring Out What You Own: Taking Inventory 247
An Introduction to Wills 249
Avoiding Probate 256
Estate and Gift Taxes 261
Balancing the Needs of Your Partner and Your Children 266
Funerals and Other Final Arrangements 270
Moving On - When Unmarried Couples Separate 273
Rules of the Unmarried Dissolution 276
The Process of Separation 278
Ten Steps to Resolving Your Conflicts 287
Mediation, Arbitration, and Other Ways to Resolve Disputes 290
Lawyers and Lawsuits: Going to Court 298
Solutions for Typical Property Division Problems 300
Tenants: Who Gets the Rental? 301
Homeowners: Dividing the House 302
Putting It All Together: Preparing a Settlement Agreement 313
Children: Custody, Visitation, and Support 313
Lawyers and Legal Research 327
When to Hire a Lawyer 329
How to Find a Good Lawyer 330
How to Use the Interactive Forms on the Nolo Website 337
Editing RTFs 338
List of Forms Available on the Nolo Website 339
Agreement of Joint Intent Not to Have a Common Law Marriage
Agreement to Keep Property Separate
Attachment A - Separately Owned Property
Agreement to Share Property
Attachment B - Jointly Owned Property
Agreement for a Joint Purchase
Agreement Covering Rented Living Space
Letter Requesting Permission to Add a Roommate
Contract for Equal Ownership of a House
Contract for Unequal Ownership of a House
Agreement for One Person to Move Into the Other's House
and Become an Immediate Co-Owner
Agreement for One Person to Move Into the Other's House
and Become a Co-Owner Gradually
Acknowledgment of Parenthood
Short-Term Agreement Regarding Separation and Housing
Agreement to Protect Property During a Breakup
Agreement to Mediate and Arbitrate
Home Buyout Agreement
Living Together: The Legal Companion for Unmarried Couples
Living together has never been more popular. According to the 2010 Census data, over 7.5 million unmarried couples live together (which translates into 15 million people). This is a 25% increase over the 2000 figures, which was a whopping 138% increase since 1990. More than 40% of unmarried households have children. Cohabitors also are an older crowd now, and the number of cohabiting seniors tripled since 1990 and is continuing to rise. The average American spends the majority of his or her life unmarried.
If you are part of an unmarried couple living together, it’s probably comforting to know that you are far from alone. However, this doesn’t mean that you can ignore how the law affects your relationship, especially if you are buying a house together.
This book will help. It explains the wide range of legal and practical rules that affect opposite-sex unmarried couples living together—from sharing money and property (contract law) to owning a house together (real estate law) or sharing an apartment (landlord-tenant law) to having a child with your partner (family law) to writing a will (estate planning).
Same-sex couples. If you are part of a gay or lesbian couple living together, see the Nolo books A Legal Guide for Lesbian & Gay Couples and Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships and Civil Unions, both by Frederick Hertz and Emily Doskow, available at www.nolo.com.
Legal rules that affect unmarried couples living together. When you understand the law, you and your partner can make informed decisions about how to structure your life, finances, property ownership, and family relationships to best meet your needs. Failing to learn about the law and take measures to protect yourself and your partner can have negative consequences. The special rules governing married couples (such as those relating to property ownership, divorce, and inheritance rights, to name a few) don’t apply to unmarried couples. In order to compensate for this, you’ll have to do some extra work. For example, you may want to write a will to ensure that your partner gets your property when you die, sign paternity statements to ensure that a father’s parental rights are preserved, or create a “living together contract” to avoid protracted court battles over property if you split up. These burdens apply to couples who are cohabiting as a prelude to marriage, as well as to those who view their arrangement as a long-term alternative to marriage.
Important legal agreements and forms. To help you, we provide over a dozen written documents that unmarried couples can use to spell out their individual legal and financial arrangements, and detailed discussions of relevant legal forms, including:
living together contracts regarding your money and property—whether you want to keep everything separate, pool all assets, or something in between (such as share ownership of a car)
house ownership agreements—whether you’re sharing costs and ownership equally or not
basic wills and estate planning forms
parenting agreements, paternity statements, and other documents relating to children you have together (or bring into your relationship from a previous marriage), and
property settlement agreements for use in the event you separate.
Each form is easy to customize and has complete instructions, and there are filled-in samples in the text. You’ll find downloadable copies of the forms on the companion page for this book on the Nolo website (see below for details).
What’s in a Name?
One of the common issues faced by unmarried couples is how to introduce each other in a way that reflects the importance of your relationship—boyfriend/girlfriend, special friend, significant other, lover, or even POSSLQ (Person of the Opposite Sex Sharing Living Quarters, an earlier Census Bureau phrase for heterosexual couples who live together without getting married)—the choice is yours. Because “partner” is one of the most commonly used and neutral terms, we use it throughout this book to refer to one member of an unmarried couple.
We believe that most unmarried couples can safely and easily master the majority of legal rules that affect them. However, it’s also true that an experienced lawyer’s advice can be invaluable when it comes to dealing with more complicated situations. We’ll point out how and when a lawyer’s expertise can be helpful—for example, if one of you has children or substantial assets, or you’re dealing with complicated estate planning.
Why live together and not get married. There are many reasons why people choose to live together without getting married. Some don’t see the need for the state’s approval of their commitment to each other. Many couples view it as a trial period before marriage. Some avoid marriage because they have gone through a messy divorce. Many people, especially in expensive urban areas with high unemployment rates, often live with partners in order to reduce housing costs.
Special concerns of seniors. The fast-increasing number of unmarried couples over age 45 that live together—over one-fifth of all unmarried couples fall into this category—often have financial and family concerns that come into play. For example, by not marrying they don’t become legally obligated for their partner’s medical treatment, and they reduce the risk of paying tax on Social Security benefits. And by not marrying, many avoid tricky inheritance issues if one or both partners have adult children from a previous marriage or own substantial assets.
One of the most common reasons older couples choose to live together instead of marrying is to avoid joint liability for debts, especially for long-term care or medical bills. Staying unmarried also enables each partner to qualify individually for public benefits, such as Medicaid, without draining the other partner’s resources. There are detailed rules about how this must be structured to avoid inadvertent triggering of joint liability, so if you are considering such a strategy, consult with an attorney specializing in elder law before you make any big decisions.
Also, changing social attitudes and values have made living together less of a stigma; living together is not considered as rare (or immoral) as it was 30 or more years ago when the first edition of this book was published. In fact, the American Law Institute, an influential organization of lawyers, judges, and legal scholars, recently recommended sweeping changes in family law, including recommending that family courts and state lawmakers begin to treat living together relationships more like marriage—even recommending that laws provide for alimony-like payments when unmarried couples split up after a long time together. To date, Washington State is the only state that has followed this recommendation.
And for some folks, staying unmarried allows them to live together without making a major legal or social commitment, which is psychologically preferable for one or both partners. As has been well documented, getting married doesn’t mean the relationship will last forever, but that’s how it feels to many partners—and it’s a feeling that they don’t feel entirely comfortable about. Older partners may be concerned about the reactions of their friends and children, and they may prefer to cohabit informally rather than suggest to anyone that their new relationship is as important as their former marriage was. And, not surprisingly, the reasons folks give for staying unmarried aren’t often the full story.
Whatever your reasons for not marrying, this book arms you with information to tackle most of the legal issues that arise during unmarried partnerships, including managing your financial affairs better, protecting your assets, buying a house or other property together, having or coparenting children and addressing the concerns of your adult children, planning for your death, and dealing with a breakup.
Check out the Alternatives to Marriage Project. This national organization that provides resources, support, and advocacy for unmarried people living together. For more information, see the ATMP website at www.unmarried.org.
Get Updates, Forms, and More at This Book’s Companion Page on Nolo.com
You can download any of the forms and agreement in this book at