Families Today: New Contracts for New Types of Relationships (2015)

15-43 Families Today: New contracts for new types of relationships

Gary Price: When two people get married and set up housekeeping together, the law in each state is pretty definite on the rights each party in the relationship has. These days, though, there are more than just the traditional marriage agreements to consider. Millions of Americans from every state in the Union are living together without being formally married. This can pose a problem if the relationship ends – especially if there are assets and children to consider. Martha Ertman recognized this and decided to offer people in non-traditional relationships some advice on what land mines they could encounter along the way. Ertman is a law professor at the University of Maryland’s Carey Law School, and has taught, written and spoken extensively on contracts and family law. She’s also the author of the book, Love’s Promises: How formal and informal contracts shape all kinds of families. She says cohabitation is nothing new. In fact, in this country, it was a way to keep society going when people lived in far-flung parts of the country…

Martha Ertman: Common law marriage came up in an age where we didn’t have formal registrations. There weren’t so many clergy, there weren’t so many courthouses to be able to do that. Or, it could be that you’re married to one person and then you move out to Iowa and then you move in, you shack up with somebody new and hold yourself out as married. And the law, then, has to decide which marriage counts.

Price: Ertman says that the oft-heard provision that a couple had to be together for seven years before they could be considered to be married by common-law is a myth…

Ertman: It is a complete myth that you have to do it for any period of time. The test is living together and holding yourself out as what used to be husband and wife, now it could be wife and wife, or husband and husband. But if you’re living together but you just call each other boyfriend or girlfriend you can’t be common law married. So really it’s the social relationship. Today there are about 12 jurisdictions that do recognize it. The problem is, most people don’t know what kind of jurisdiction they’re in. So, if you’re in the District of Columbia you can be common law married. But, just a walk away in Maryland or Virginia you can’t be common law married.

Price: One of the reasons Ertman says she wrote the book in laymen’s terms was to make sure people understood all of the legal ramifications and provisions of the relationships they undertake. It’s good to know, for example, that if you are common-law married in Washington, D-C or any state that allows it, generally speaking your marriage is recognized in states where there is no common law marriage. To find case law and history on cohabitation we don’t have to go back to frontier days, though. Anyone who is over about 50 years old will remember the big Hollywood “palimony” case involving actor Lee Marvin and his partner Michelle Triola…

Ertman: It gave us the language. The word “palimony” came out of that case and the tremendous media attention that resulted when it came down out of the California Supreme Court in 1976. So palimony is a cross between “pal” and “alimony,” and the idea is if you live together, and in the Lee Marvin – Michelle Triola situation she said, “I’ll give up my singing career if you support me for life,” or he said, “If you give up your singing career, I’ll support you for life,” and that was the first time a court said that is a legally binding promise. Now, what most people don’t know is after the Supreme Court said she could sue, the lower court said she hadn’t really proved up all the things she had to prevail and it was later people who actually got to get some compensation for the work they did.

Price: But why go through all of that if you are in a committed relationship? If you own a house together, joint accounts and maybe even children? Why not just get married and forego the potential problems?

Ertman: One of the things I learned as I was researching this book about all the reasons people don’t get married. Sometimes it’s law. So before as of May, lots of same-sex couples could not get married. So the law kept them from getting married, then all they could do is live together. Similarly, as you say, if you’ve got one spouse you can’t get another spouse. Some people think, oh marriage is so old fashioned. I think that we’re going to have that question be answered in the near future because same-sex marriage calls the question. Now that gay people can get married in any state in the Union, the question is whether these alternatives that are known by different names like civil unions and domestic partnerships and reciprocal beneficiaries – in different states they have different names – whether those alternatives will go by the wayside. And I hope they don’t, because love comes in different packages.

Price: Ertman says that some of those packages don’t involve romantic love, but companionship, and she says they should be considered “partners” despite the fact that they never would get married…

Ertman: Oftentimes there might be adult sisters who are the hugest thing in each other’s lives. They may live together, they share a bank account and it’s unfair to treat them different from a spouse relationship.

Price: A marriage license isn’t the only legal document that can provide property division and financial stability for a non-spousal partner. Both partners can also make out wills to take care of the issue. Ertman agrees that a will is a good idea. Unfortunately, most Americans never get around to drawing one up…

Ertman: For the same reason most people don’t make living together agreements, most people don’t make wills. So the law’s job is to say, “Okay, you have freedom of contract, if you want to make a will, have at it. But for the vast majority of people who don’t get around to it — whether they don’t want to think about their death, or they don’t want to make the decisions, or it’s just intimidating or expensive — then the law has to have a background rule. And that’s where these statutes called “intestacy statutes” come in saying if you don’t bother to make a will, it goes to the people we define as your family. And that could be somebody you’ve together with. That’s one way that the co-habitation “us-ness” could get recognized and, in fact, has been recognized in some of the cases that I talk about.

Price: It seems that right now no matter how a couple decides to divvy up the assets and property, if they aren’t married, they need to write their intentions clearly. That way, if there are any disputes the court has more than “he said, she said” to go on…

Ertman: Contract law has this term called “the statute of frauds” that says certain kinds of agreements have to be in writing to be legally binding. So if it’s an agreement about selling your house, that has to be in writing to be binding because it’s such a big transaction. Some states require living-together agreements to be in writing in order to be binding. So you mentioned Lee Marvin. The “Marvin Agreement” is recognized in almost every single state, but a good number of them require it to be in writing. One of the proposals that I put forward in the book is that there shouldn’t be that writing requirement because so many people reasonably expect that the oral promise will count. And so I would say if you’re acting like an “us,” if you’re sharing your bank accounts, if you’re sharing your lives together socially and emotionally, then the law should treat you like an “us” and enforce that promise.

Price: Ertman has included some sample contracts in the book for people who want to take the safe road and spell out their relationship on paper…

Ertman: In the back of the book there’s an appendix with real-life contracts. There’s an example of a really short co-habitation agreement that people could enter both with legal promises like “we share property that comes into the household while we’re in our relationship,” but also things that are not legally binding. These arrangements I call “deals.” So, for example, one clause I put in there says there’s a cooling-off period of three days. Nobody gets to end the relationship without taking a three-day break – basically taking a very long walk around the block – and then if at the end of three days you still want to end the relationship you do it. But it may well be that you do it with a little clearer head and, therefore, make arrangements that are probably a little more fair in the long run.

Price: As she said earlier, there are many different ways that people love each other and governments shouldn’t make it difficult for them to deal with the legal aspects of their relationship. Ertman says that creating laws for cohabitation isn’t that complicated if you look at these non-traditional partnerships as offshoots of the traditional marriage agreement…

Ertman: One thing that’s fortunate, or unfortunate or just is, is that there are patterns: most people are heterosexual, most people do get married at some point in their lives, most people are raising children that they’re genetically related to. Because those are the most common arrangements, I call that Plan A and the family law rules properly would say, “Okay, if most people get married at some point, often more than once, then that makes sense to be the default for particular rights and duties. But, if instead there variations then, like being an adoptive mother, you have a little different set of rules. You get an adjective associated with it – “adoptive” before mother – and then there can be special rules for it. So I think that it’s not as complicated as it seems if you recognize there’s a general rule that’s going to apply to probably nine out of ten situations, but you still need exceptions for the last ten percent.

Price: Martha Ertman explains the legal ins and outs of marriage and cohabitation in her book Love’s Promises, available in stores and online. She also addresses the legal agreements for different types of parenting arrangements, such as surrogates, co-parenting and adoption, in the book. You can find out more about Ertman and her work at the University of Maryland Carey School of Law at law.umaryland.edu. For information about all of our guests, log onto our site at Viewpointsonline.net. You can find archives of past programs there and on iTunes and Stitcher. I’m Gary Price.