Monday, December 16, 2002

A story published today by the Boston Globe reports that as America's cohabitation rates soar, live-in couples are increasingly drafting legal documents to clarify their financial arrangements if they split up. While married people can rely on divorce laws, the nation's 11 million unmarried same-sex or heterosexual couples don't have a similar rule book to follow.

To fill this legal void, more couples are viewing cohabitation agreements as a smart alternative, a way to offer legal protections for each other - and from each other. And the Massachusetts Supreme Judicial Court, in two key rulings recently, found these documents valid and enforceable. Common-law marriage is not recognized in most states, including Massachusetts. Where it is recognized, couples often find the laws too murky to rely on. In Massachusetts, attorneys say couples often like the specificity of cohabitation contracts, which include property distribution, income support, even pet custody. They generally draft separate documents, such as health-care proxies and powers-of-attorney papers, that appoint their life partners as their stand-ins in case of sickness or incapacitation.

No national or statewide statistics exist on how many cohabitating couples sign such agreements, but local lawyers say they are on the rise, given the increasing number of couples who choose to live together and new rulings that add to their legal validity.

In Massachusetts, the courts have ruled that explicit written agreements are the best protection for cohabitating couples - though lawyers warn to be careful what you sign.

Four years ago, the state's highest court found that Carol Wilcox would have to live by the terms of a cohabitation agreement that she signed with her boyfriend John Trautz, even though she regretted it. The contract, signed toward the end of their relationship, gave her virtually nothing after 25 years together. During that time, she was like a traditional housewife, helping with the cooking and housecleaning while their major property assets were accumulated in his name.

She had argued that simple fairness dictated that she should get a share of the assets collected while they were together, including a house in Rockland and a second one in Halifax, but the judge kept to the letter of the cohabitation agreement that she signed.

''I used to say you should draft a cohabitation agreement because it can't hurt,'' said Joyce Kauffman, a Cambridge lawyer. ''Now I can say, it will be upheld.''

Given the nation's growing cohabitation trend, some legal scholars are recommending that live-in partners be treated more like spouses when there is a dispute about financial arrangements after a breakup. The American Law Institute, an influential group of lawyers and judges, last month issued recommendations along those lines, sparking criticism from some conservative scholars that the proposals were anti-marriage.