Non-Marital Agreements

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More and more couples are deciding to live together without being married. So, the big question is what happens when these couples break up? How can individuals who are unmarried and living together protect their individual financial interests?

Many states have laws that govern the financial interests of married couples. However, most states have no laws that govern the financial interests of unmarried couples who live together.

How a non-marital agreement can help

In order for you to establish and define how you will share property during your relationship and specify what happens to that property after the relationship ends or when one of you dies, you must put your intention and desires in writing.

This agreement is commonly referred to as a “non-marital agreement” or “living together contract.” (To aptly specify what should happen if you die during the relationship, you will need to draft a will also.)

A non-marital agreement is an agreement between two people who are living together as an unmarried couple. It sets out how the couple’s assets and debts will be distributed in the event they split up or if one of them dies.

The primary goal of a non-marital agreement is to ensure that in the event that there is a break up, neither party is financially devastated.

Almost every state enforces non-marital agreements that are properly drafted and reasonable.

What issues should a non-marital agreement address?

There are many different things that unmarried couples who live together can do with a non-marital agreement to protect their individual financial interests.

In fact, the longer you live together the more important it becomes to make it clear who owns what. This is especially true if you acquire property together as an unmarried couple.

The issues you address in your non-marital agreement should include, but not be limited to, the following:

• How you will take title to the property:  Some states allow unmarried couples to hold title to property as “joint tenants with rights of survivorship,”. This meaning that when one partner dies, the other will inherit the whole property automatically. Alternatively, you may be able to hold title to property as “tenants in common,”. This will enable each of you to specify who will inherit your share of the property in a will or trust.
• What share of the property each partner owns: If you hold title to the property as joint tenants, you must typically own equal shares in the property.
• What happens to the property when your relationship ends: Will one of you be required to buy the other out? Will you be required to sell the property and split the proceeds? What happens if you can’t agree on who should buy whom out? How gets first choice?
• Income disparity: If someone is contributing to the household in a non-financial way, how will this be accounted for?
• Responsibility for debts: Your non-marital agreement can also specify who is responsible for what bills and to what extent.
• Non financial issues: You may also choose to address any number of non financial issues that you wish to document, such as the division of labor, how infidelity will be dealt with, as well as, how long you can stay in the home you share in the event of a break up.

Drafting an enforceable non-marital agreement

You do not necessarily need a lawyer to draft your non-marital agreement. However, a lawyer can ensure that agreement meets the requirement to be enforceable within the state in which you live with your partner.  Generally, in order for a non-marital agreement to be enforceable, it should meet the following criteria:

• Be reasonable and fair: The agreement must be reasonable and fair with respects to the interests of both parties.
• Separate attorneys: Each party should have been represented by their own separate attorney when negotiating the terms of the agreement.
• Be signed by both parties: Like every other contact, your non-marital agreement should be signed and notarized by both parties. That way neither of you can claim later that your signature was obtained fraudulently.

Any departure from these standards may render the agreement subject to being nullified by the court.

For more information regarding the validity and enforceability of non-marital agreements in your state, contact a local family law attorney.