Love, Relationships and Finance: Same-Sex Cohabitation

What’s the legal difference between same-sex cohabitation and heterosexual cohabitation?

Legally, there’s no difference. As unmarried partners, you, like unmarried heterosexual couples, lack the legal protections that marriage automatically confers, so you have to create these legal safeguards for yourselves.

Remember, you cannot rely on a family court to protect you or assist in dividing up your property if you separate; there is no jurisdiction in this country that will automatically recognize your inheritance rights. Further, if you have children, you cannot collect child support and you cannot appeal to the judicial system for custody or visitation (except in those few places where a same- sex partner can adopt his or her partner’s children). Even more than heterosexual couples can, after all, get married in a pinch -- gay couples in serious relationships should have some or all of the following: wills, living trusts, health-care proxies, durable powers of attorney, and written agreements about the disposal of join owned property. Though some of these agreements may not be fully enforceable in many jurisdictions, they do provide a framework to guide your actions at times when you may be emotionally overwrought and unable to make sound, fair decisions.

Couples in Vermont have the option of registering as a “civil union,” which makes the couple subject to all the same family-law rules that apply to married couples. Other states may adopt similar laws in the future.

It’s especially important for you to put everything in writing. In just about every state, written andoral contracts between unmarried couples -- including same-sex couples -- are, hypothetically anyway, legally binding. But oral contracts are hard to prove, and in some parts of the country, a gay or lesbian partner may find it exceedingly difficult to enforce the terms of an oral or an implied agreement in court.

How should we draft a cohabitation agreement?

There are several excellent books to help you get started, including The Living Together Kit by attorneys Ralph Warner, Toni Ihara, and Frederick Hertz; Legal Affairs: Essential Advice for Same-Sex Couples, by Frederick Hertz; and A Legal Guide for Lesbian and Gay Couples by attorneys Hayden Curry, Denis Clifford, Robin Leonard, and Frederick Hertz. Further, if you have significant assets, you should consult a qualified attorney. I know a gay couple who went so far as to make a video tape of themselves stating their intentions in front of a lawyer, to be sure that no one in either of their families could challenge the rights they had granted to each other.

I'm in a same-sex relationship, and my partner and I own property together. What happens in the event we break up?

If the property is held jointly, either party can petition the court to sell the property and divide the proceeds of the sale according to the terms of an agreement, or fifty-fifty in the absence of an agreement. The partners can also try to reach an amicable agreement between themselves by purring the property on the market and dividing the proceeds of the sale, or one partner can buy out the other’s share.

My partner’s name is on the title of the house we are living in together, but I have been paying the mortgage. Now we are breaking up. Do I have any rights to the property?

The property will go to the partner who holds title, unless the unnamed party can claim that he or she had an agreement with the partner to share the asset. (In some states, only written agreements can supersede the title.) The dispute will be re solved in the ordinary “business” division of the local court, rather than the family law division, and contract law rather than family law will apply.

If my partner and I haven’t bought property together, are we financially obligated toward each other in any way?

It depends on whether you’ve signed an agreement specifying obligations to each other. If you wish to formalize a set of financial obligations, it’s better to have a written contract.

Can my same-sex partner and I enter into a common-law marriage?

No. As of this writing, common-law marriages don’t extend to same-sex couples.

[Subjects covered: Cohabitation Agreements, third person mutually, prepartnership agreement, estate planning beyond, joint project agreement, informal guardianships, reciprocal beneficiary relationship, medical care documents, estate planning resources, civil union partners, dispute arising under this agreement, domestic partnership]

Prev | Next