How Can a Party Protect Him or Herself in a Relationship not Recognized by the State

A question as to how parties who are not married in the eyes of the state but who have a committed relationship to each other can protect their status has been much discussed because of the focus on the rights of same sex marriage.

Recently, after the federal government advised states that their National Guard had to provide the same benefits to same sex married couples as to heterosexual marital couples, some states decided not to provide any benefits at all to married people rather than provide matching benefits to same sex couples.  The leading state to do so, Oklahoma, now has a case making its way through its courts regarding whether or not its ban on same sex marriages is legal.  Because the courts might determine that the state must recognize same sex marriages, some legislatures in Oklahoma are now studying whether the state should stop recognizing any marriages at all.

Without commenting on the discriminatory motivation that these legislatures might have, this puts in clear focus the question of how parties in a union not recognized by the state might protect themselves.

Since Pennsylvania does not currently recognize same sex marriages, this would include same sex couples.  The largest number of people without lawful status who must protect themselves are either roommates who do not have a romantic relationship or heterosexual couples who are not married.  The divorce law in Pennsylvania does not apply to these individuals and equitable distribution and other provisions do not apply.

We have written previously about prenuptial agreements which people entering into marriage can use to vary the economic results of a future marital termination from what the law would provide.

Parties who do not have a legally cognizable familial relationship would be well advised, before committing substantial economic assets or jointly incurring liabilities, to enter into a properly crafted written agreement.  Just as business partners should have a business partnership agreement which expressly states what each party must do, what kind of debt can be incurred without the consent of the other, how income and assets will be distributed and how any obligations, duties or requirements be treated, so should unmarried couples.  Other issues which might be discussed are what happens if one of the parties vacates the property without the agreement of the other or what happens when a party wishes the other to vacate the property.  Is there a way one party can buy out the other?  Is financing a place to do this or, if funds may not be available, what are the consequences?  If jointly incurred debt exists or will be created, how will this be handled if the parties are no longer together?  Who gets property jointly acquired?  Be aware that an agreement between two parties with regard to debt to a third party does not bind the third party creditor.

To have an enforceable agreement and to have an agreement which is properly drafted, one needs an attorney.  By the way, it could include an enforcement clause whereby a party enforcing the agreement against the breaching partner is protected with regard to the cost of enforcement, including legal fees.