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Cohab agreements more common, group says

Early Census results showed an increase in the number of couples who cohabit. We know from history, though, that unmarried partners have to protect their assets just as carefully as married couples do. And while the issues may not be the same, the result of not planning for the break-up contingency can be painful, expensive litigation. The law doesn't provide for partners in heterosexual or same-sex relationships the way it provides for spouses or civil partners. So, what's an unmarried, cohabiting couple to do?

More and more, they enter into prenuptial-type agreements. In a recent survey, 39 percent of the members of the American Academy of Matrimonial Lawyers said they've seen an increase in the number of cohabitation agreements over the past few years. Almost half say they've seen an increase in the number of married couples ending up in court, though there was no indication that the two findings were related.

The cohabitation agreement is not new, but it's young. Family law attorneys say they started seeing them about 15 or 20 years ago. (Some say it should have been earlier, in the wake of the Marvin v. Marvin "palimony" case in the late 1970s.) And the Academy has publicly recommended that couples, regardless of their sexual orientation, enter into a "cohab" before or soon after they move in together.

For same-sex couples, the agreement is particularly important, say some. While civil unions are recognized in Illinois, most states don't. The agreements can clarify legal rights in states with and without civil union laws. If children are involved -- perhaps adopted by one partner but not by both, for example -- couples should take extra care to spell out custody, support and visitation arrangements in the off-chance they'll split up.

Real estate is another concern. According to one attorney, litigation is much more complicated when people own a house together but aren't married. And partners will want to protect their stake in the property from seizure for the other partner's debts.

It can be disconcerting for a couple to consider these things at the outset. The process can help them clarify roles and responsibilities, too -- and they can think of the cohabitation agreement as proof of their commitment to one another.

Source: The Canadian Press, "Survey of U.S. divorce lawyers shows rise in prenups for unmarried couples," 02/15/11

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