Fields and Dennis LLP

First things first: the ‘no-nup’ prenup
Vicki L. Shemin August 30, 2018

Remember the good ol’ days when two people met, fell in love, and got married?

Nowadays, not so fast. Increasingly, couples are rehearsing the relationship before deciding whether to plan a rehearsal dinner. As marriage rates have fallen, the number of cohabiting relationships has continued to climb sharply.

As reported by the Pew Research Center, the number of Americans living with an unmarried partner reached about 18 million in 2016, up 900 percent over the last 50 years.

To put a finer point on it, that equates to some 7.8 million couples living together without putting a ring on it — 85 percent of whom will break up by the end of 10 years.

Equally compelling is the Centers for Disease Control’s finding that 20 percent of first-time cohabitating women became pregnant and had a baby within the first year of living with their boyfriends.

At a time when the divorce business is booming but the remedies for the unmarried brokenhearted are virtually non-existent, savvy couples should be seeking to safeguard their respective best interests, as well as that of the relationship, by taking proactive and preventative measures.

Regardless of whether cohabitation is a stepping stone toward wedded bliss or an alternative to that institution altogether, couples ought to be duly cautioned to economic and legal realities that may well confront them if the time comes when they have to decide who takes custody of the puppy, the Porsche and the Pratesi.

The term “no-nup” has been coined to refer to agreements for those couples who will not be entering into prenups (as they don’t intend to marry) and/or for those who are both smart enough to know the future is uncertain and discerning enough to know protections are in order. In the event of a breakup, these bespoke contracts can be as simple or as complex — and as tailored — as befit the cohabitators.

What kinds of considerations should go into a no-nup? Especially if a purchase of real estate is involved, deciding how title is held could mean the difference between someone getting 50 percent or 100 percent of the property interest if the partner dies. Titling issues are easy and relatively inexpensive options to consider in order to avoid financial hardship if the affaire de coeur fizzles out.

Deciding who stays and who goes if the relationship goes south is another key consideration — and becomes all the more weighty if there is a child involved, or someone becomes ill or loses his or her job.

Legal options, such as joint tenancy agreements, are ideal for memorializing key decisions such as whose name will be on the deed and note, whether the property will be sold, whether a right of first refusal will be available, what will happen to the initial down payment, how appreciation will be addressed, how debts accumulated during the relationship will be assigned, and whose name gets put on the utility bills.

Agreements also can address how couples will contribute to the monthly nut: Will all expenses be paid 50/50 or in proportion to the cohabitators’ incomes? Operationally, how are the household bills going to be paid and exactly what types of bank accounts will be established? And even if there is only a lease involved, couples who do not commit to marriage ought to ensure that their mutual understandings are committed to writing.

No-nups can go a long way toward saving couples time and heartache if the relationship flatlines. Even more importantly, however, the experience of hammering out the economies of resource-sharing ahead of time can have the unexpected, non-economic benefit of strengthening and maturing the relationship.

So, before an unmarried couple is all in, they should bet on a no-nup and not leave to chance the legal entanglements that may well continue to bind them in unforeseen ways.

Vicki L. Shemin is a family law attorney and clinical social worker practicing at Fields & Dennis in Wellesley Hills. She can be contacted at vshemin@fdcattorneys.com