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Not married? You’ll still need a pre-nup

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iol life april 5 the break up

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In The Break-Up, Brooke calls it a day after being under-appreciated one too many times by boyfriend Gary.

New York - Not all couples put a ring on it, but living together without getting married does not preclude the possibility of a prenuptial-like agreement.

A survey of divorce attorneys who belong to the 1 600-member American Academy of Matrimonial Lawyers shows 48 percent have seen a rise in couples slinging it out in court.

Of those, 39 percent report an increase in the number of cohabitation agreements that protect property and other assets for partners living outside the parameters of legally recognised marriages.

Such contracts are coming into their own, said Ken Altshuler, the group’s president-elect in Portland, Maine. “They’re really on the cutting edge of relationships today as more people move in together.”

The elite organisation of divorce lawyers advises cohabitation agreements for unmarried heterosexual couples along with same-sex partners whose unions are not legally recognised, especially when children are adopted by one but not both partners.

“To go to court to enforce your rights is very expensive,” said Susan Bender, a Manhattan lawyer who routinely handles cohabitation agreements for same-sex couples. “Otherwise, there’s litigation, the hiring of an attorney,” she said.

Linda Lea Viken, the group’s outgoing president in Rapid City, South Dakota, said cohabitation agreements protect an unmarried person’s stake in jointly owned property like a house and guard against seizure for payment of spousal debt.

What if one partner buys a house and the other furnishes it? How will the purchase of groceries be handled?

“If we break up and there’s no agreement, I don’t have a claim,” Viken said. “The litigation between two people who own a house together and aren’t married, is much more difficult than two married people who are getting divorced.”

About 30 percent of the attorneys who responded to the survey said most cohabitation agreements they draw up were for same-sex couples. With only a handful of states recognising gay marriage, the agreements can spell out legal rights both in and out of state. But, most of the attorneys surveyed were executing the agreements on behalf of unmarried, heterosexual couples.

Fear over a partner’s debt pops up often among people asking Altshuler about legal shields outside marriage.

“Most people who call me up who are cohabiting, don’t think of it as a traditional prenup,” he said. “They think of it in terms of how do I protect my assets? Can they come after my share of the house because of his credit card debt?”

But, the cohabitation agreements are not necessarily right for everyone.

Kelley Long is a freelance finance consultant in Chicago. She and her boyfriend, marketing executive Matthew Fenton, have been living together for more than a year. With help from the creation of a joint account, Long established standing as a domestic partner so she could qualify for health benefits through Fenton’s company-provided insurance.

They sought legal advice on a cohabitation agreement – he, to protect his higher salary, and she, to “just kind of delineate a division of duties, how things go while we’re together”.

They had jointly signed a lease on the flat they rented and Long wondered what would happen in the event of a default. She wondered, too, about the household bills, some of which are in her name and some in his. But, they decided to skip the legal formality.

“It came down to, if I have to protect myself against this stuff, we probably shouldn’t be living together,” she said. – Sapa-AP

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