What are my rights if I have lived with someone, and we have accumulated joint debts and assets, if we cannot agree on division when we separate?

In the past several years, there has been a shift away from what used to be the “traditional” American family unit. Gone are the days of a mother staying at home and being a full-time homemaker, a father working at one job his whole life, and two children born of the marriage. The notion of a family is constantly being refined from a social, political and legal context and perspective.

Nevertheless, law typically changes slowly over time and there are many more legal questions than answers with opposite-sex or same-sex cohabitation. This presents unique challenges for couples who intend to live together. However, Indiana courts have been responsive to this trend. In anticipation of what may occur in the future, couples who intend to live together can enter into a cohabitation agreement. This is a contract and is generally enforced by Indiana courts for same-sex couples and those of opposite sex (heterosexual), as it relates to assets and liabilities.

Where same sex couples intend on “having” a child, the law is incredibly complex in Indiana and the couple should have an extensive conversation with a cohabitation lawyer. The law is in a great state of transition as it relates to custody, parenting time, and visitation with same-sex couples. In same sex couples with children, upon separation later, the non-biological parent risks not having parenting time or visitation. In these narrow cases, a cohabitation agreement does not appear enforceable.

In other cases, much like divorce, the parties did not anticipate that the cohabitation would ever end. Therefore, they did not plan for it by a cohabitation agreement which is like a pre-nuptial agreement made before marriage. There is no common law marriage in Indiana for such heterosexual couples. Therefore, there is no cohabitation divorce. Nevertheless, a breakdown in cohabitation and divorce relationships have similarities, with several legal remedies available.

Specifically, a cohabitation lawyer can file an action under a contract law theory whereby the court can enforce a cohabitation agreement. These are generally enforced unless to do so would violate public policy. Furthermore, the cohabitation lawyer may use principles of contract or business partnership law and equity to apportion assets and liabilities where there is no cohabitation agreement.

Thus, whether it is in anticipation of living together as a couple, or after the relationship ends, a cohabitation lawyers knows the tools provided by the Indiana courts to prepare for the situation you face.