Resolving cohabitation issues is often more complex than resolving divorce issues. I remember when I first started practicing law nearly forty years ago, cohabitation was frowned upon and litigation in the courts regarding couples breaking up were often settled in the district court on criminal nonsupport issues of children born out of wedlock. Unlike in divorce cases where we received guidance from statutory as well as decisional law from our appellate courts, there was no statutory frame work and few cases.
Social mores have changed, and in turn, the law which often adopts the mores of society has changed. Nonsupport issues are rarely if ever now handled in the criminal courts. Children’s issues are handled in the probate court under Massachusetts General Laws, Chapter 209C dealing with child support, education of children, and custody, among other things. Difficulties often arise when people who are not married end their relationship but they own property together. Do not forget that the division of property statute, Massachusetts General Laws, Chapter 208, section 34 applies only to divorce. How then are disputes involving parties who never married and their property rights determined? Until there is legislative action, the cases are determined on their facts, often presented to the court by an equity action seeking division of property. As stated earlier, there has not been many appellate decisions dealing with these issues. I had the honor of participating in teaching a course entitled “Unmarried Couples” at Suffolk University Law School in Boston in the Advanced Legal Studies Department and attended by lawyers and judges. I also was asked to contribute my writings and thoughts to a volume which would be the teaching tool of the course. The book that I co-authored is also entitled “Unmarried Couples” and deals with a myriad of issues, from cohabitation agreements that people might consider having drafted to litigation to estate planning. What we emphasized as a result of the course we offered, was to encourage cohabitating people to have a cohabitation agreement prepared for them. Just like parties who are about to be married will sometimes have a prenuptial agreement drafted, anyone who is cohabitating with an unrelated individual where there is property that is being acquired together should definitely speak to a lawyer about having a cohabitation agreement drafted. If this is your concern, I would be happy to meet with you and discuss the benefits of such an agreement. If you are ending the relationship without having had the benefit of the agreement which would spell out what would happen if the relationship dissolved, I would be able to meet with you and discuss litigation as an option as well as mediation and arbitration.
In today’s society, as what constitutes “family” changes, so do the laws of the Commonwealth adapt to life in the twenty first century. Same sex relationship might mean married couples or couples who cohabit. Those parties, be they same sex or otherwise, will buy homes, have and adopt children, divorce or split up. As stated, Massachusetts has a wealth of case law and statutes providing guidance to lawyers and judges to assist people who are married. For those parties who are unmarried and same sex, issues regarding division of property, custody rights/visitation rights to children where no adoption has occurred, the law has to adapt to protect those individuals. Such terms as “de facto parent” have been created to take into account a person who has stepped into the role as a parent and done those acts commensurate with being a parent. Thus, if you have lived with your life partner and his/her child for a period of time and have not adopted that child, you may still have rights to see and take that child depending upon the nature of the relationship you have had with that child.
The old adage heard from youg people that they do not want to marry because they do not want the problmes of marriage when they breakup is truly a fiction. If you have issues regarding your partner in life with whom you have or plan to cohabit, I am able to discuss your issues and offer advice to you, and certainly can assist you in ligigation to preserve your rights to property and to your children. Be you in a heterosexual or homosexual relationship where marriage has not occurred, but you have acquired property or plan to, whether you have children or plan to, cohabitation agreements are essential to avoid problems later on.