One of
the first things I ask when meeting with a new client contemplating divorce is
the date of marriage. What I often hear
in response is, “Well we’ve been married ___ years (fill in the blank, it is
usually under five) but we lived together
for 10 years (or fill in the blank) before
that.
So I’m
thinking, thanks for the information, but as it pertains to your rights and
responsibilities in a divorce in Florida, it is not really relevant. You see,
Florida is not one of the states that recognize common law marriage, at least
not since 1968, when it was outlawed.[1] Common law marriage, in those states that
still recognize it,[2]
essentially establishes that a man and woman who lived together and, for all
intents and purposes, held themselves out as husband and wife, for a certain
number of years (requirements vary by state) are deemed married as if they went
through the legal formalities associated with nuptials.
Well,
let’s suppose that you are one of those folks who live in a committed (we hope)
relationship but one or both of you do not wish to get that “piece of
paper.” Fair enough, but since you don’t
want to even see the end of the (marriage) aisle, you probably are not looking
down the real road either. Here’s my
suggestion….take a look. And here’s my
solution: a cohabitation agreement.
“What’s
a ‘cohabitation agreement?’” you ask.
Glad you inquired. Essentially, a
cohabitation agreement, also sometimes referred to as a “domestic partnership
agreement,” is a binding contract between two people that sets forth rights and
obligations of the partners, particularly if there is a break-up down that
proverbial road. And while we are at it,
these agreements are not only for a man and women living together, but also for
(and more commonly used by) same sex couples who (don’t get me started) are
still unable to legally marry in many (Florida)
states.
Some of
the issues that can be addressed in a cohabitation agreement are:
-division
of joint debts, regardless of whose name the debt was incurred
-who
keeps the apartment lease, or the house purchased in only one name (but paid
for by the other or both)
-who
keeps (and pays for the car) that is jointly titled
-what
happens to the pets
-does
the inferior earning partner get any financial assistance if the couple splits
(or just a swift kick out
the front door-don’t laugh, I’ve seen it happen and without this agreement
there is typically no legal
remedy)
Such an agreement may also include
preparation of a health care surrogate form giving legal authority to one’s
partner to make medical decisions on the other’s behalf in the event of an
emergency, because, guess what, without it, no matter how many years you’ve
lived as a couple, the partner has no legal right to do so.
Some Florida counties, Miami-Dade, Broward and Palm Beach included,
permit couples to register as domestic partners by filling out a simple form
and filing it in the county of residency.
You can find Broward’s registry form at: http://www.broward.org/RECORDSTAXESTREASURY/RECORDS/Pages/DomesticPartnershipInformation.aspx
However, as of March 2013, 60
Florida counties had no domestic partnership registry. Even with the registry, absent a well crafted
document by a knowledgeable family law attorney, some of the other areas
addressed above are, well, still not addressed.
So,
if two people care enough about each other to be together day in and day out,
they should care enough about each other to commit enough to put a few things
down on paper. And if not….maybe it’s
time to get out now, before it’s too late.
[1] If
you’re really interested (and have nothing else to keep you entertained, here’s
a link for a list of states that recognize common law marriage or some
derivation of it: http://www.ncsl.org/research/human-services/common-law-marriage.aspx
[2] it
may be relevant if the parties had a lawful common law marriage in a state that
recognizes common law marriage and then moved to Florida and wanted to divorce,
but I digress)
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