If you don’t get married, it’s hard to get a divorce

Some of the trickiest cases Bethesda divorce lawyer Deborah Luxenberg has handled come with a twist: The couples in question never married.

They’ve paid the rent together, flossed their teeth side by side and shopped for the perfect couch. Maybe even had a kid. But they chose not to tie the knot. And when they decide they want to untangle their lives and get their fair share of combined assets, they come to divorce lawyers such as Luxenberg for help.

“But there isn’t any law around this,” she says. Often, Luxenberg has to tell them something no lawyer likes to tell a client: There’s not much she can do.

They need to work it out between themselves.

A study by the Pew Research Center found that 39 percent of Americans think marriage is becoming obsolete. But it still takes a marriage (or some other legally binding agreement) to get a divorce. And as the number of couples choosing to live together rather than marry has increased drastically, so have the spats over their splits. The American Academy of Matrimonial Lawyers found that almost half of its 1,600 members are seeing an increase in court battles between cohabiting couples. Nearly 40 percent of those lawyers said they’ve seen an increase in demand for cohabitation agreements — the equivalent of a prenup, sans wedding ring.

“It’s pretty heartbreaking,” Luxenberg says. “People don’t have rights unless they have the title — their name is on a piece of property or a bank account or something like that.”

Luxenberg recalls one client who lived with her partner for 20 years. They’d had a child and built a home together. The woman’s income was about $50,000, Luxenberg says, and her boyfriend’s was “six or seven times that.” When the couple split, the woman hired Luxenberg to see what recourse she had. The answer: not much.

There would be child support, “but she didn’t get any of his pension benefits or any of his profit sharing. And she wasn’t going to get alimony,” Luxenberg says. “I don’t think people think about those kinds of issues.”

Planning ahead

Amber Settle eventually did. When she and Andre Berthiaume, professors at DePaul University in Chicago, moved in together in 1997, they were young and in love and not at all worried about whether their relationship would end.

The two decided that marriage was not for them — “As an institution, it’s just not something that I feel like fits me,” explains Settle, now 43 — but they bought a house and other property together.

When the couple had a daughter, Erin, in 2004, it spurred them to reconsider their relationship — and what would happen if it dissolved.

“We started to realize that it’s great that we were getting along now,” she says, but “that it would be really good if we could have a discussion about what it is that we would want to do [in the event of a breakup], especially when it comes to our daughter.”

Settle and Berthiaume visited a lawyer specializing in gay and lesbian couples, the groups that first popularized cohabitation agreements. The pair drafted an agreement spelling out how custody of their daughter would be shared if they broke up and how major assets would be divided.

“We haven’t said who will get what books — we didn’t go that far,” Settle says. “It was just a clarification of what we both understood. . . . We had to think about it a little and then we wrote it down and signed it, and we put it away.”

“It’s good to have that discussion while you’re still civil with each other, if you can,” she says.

Lisa, a 55-year-old government employee from Silver Spring, wishes she had done something similar. She was in her mid-30s when she began dating a lawyer and agreed to move in with him two years later. For years, they split rent and expenses.

“I didn’t want to get married and didn’t see a legal need to get married,” says Lisa, who asked that her last name not be used to protect her ex’s privacy. They even referred to each other as spouses — “at our age, it sounded better than boyfriend/girlfriend,” she said.

Seven years ago, they decided to buy a house. The pair adopted a dog and schemed about moving to the Midwest after Lisa retired from her federal job this fall. But last November, Lisa’s partner told her he’d fallen back in love with an old flame from college.

“The first thing I said was, ‘I get the dog,’ ” she remembers.

It was less clean-cut after that. Within weeks, Lisa realized she needed to hire a lawyer. They could divide most of the household items themselves. What they owned before they met or bought with their own money, they kept. But who got the couch? And what about the value of the fence they’d paid for together?

Lisa’s lawyer negotiated a settlement that required her former partner to pay her for half the equity in the house and laid out their financial obligations to each other for the coming months. Lisa still planned to move to the Midwest and didn’t want to move into temporary housing for the interim months, so she essentially became her ex’s tenant.

“It’s uncomfortable,” she said, but the settlement stipulated that her ex couldn’t bring his new girlfriend to the house while she was around.

A growing trend

A recent census report found that 7.5 million heterosexual couples lived together in 2010, up 13 percent from 2009. The report suggests that some of the shift may be attributed to the economy — more couples than in the previous year reported at least one party being unemployed. (An Onion TV headline put it this way: “Nation’s Girlfriends Unveil New Economic Plan: ‘Let’s Move In Together.’ ”)

The numbers have been climbing over the past decade as cohabitation has become more socially acceptable.

Brad Wilcox, director of the National Marriage Project, an organization that promotes marriage, worries about the effect this has on children.

The good news, he says, is that divorces among parents with children have returned to levels not seen since the 1960s. Of couples who married in the early 1960s, 23 percent divorced before their first child turned 10. The rate peaked at slightly more than 27 percent in the late 1970s. By the mid-1990s, the rate dropped to just above 23 percent.

But a recent report Wilcox wrote, titled “Why Marriage Matters,” concludes that American families are less stable overall, in large part because couples are choosing cohabitation over marriage. Today, 24 percent of U.S. children are born to cohabiting couples, according to the report, and an additional 20 percent will live in a cohabiting household at some point in their childhood.

And 65 percent of children born to cohabiting parents will experience a parental breakup by the time they turn 12, compared with 24 percent of kids born to married parents.

“The more commitment people have to a relationship, typically the better they’ll do, the happier they are,” Wilson says.

This generation’s preference for cohabitation, he adds, may be a backlash against their parents’ propensity for divorce. But not getting married doesn’t protect couples who live together from heartache when the relationship falls apart.

“You’re going to have that same emotionality that you have when there’s a divorce,” says Linda Lea Viken, president of the American Academy of Matrimonial Lawyers. “Except in some respects it will be worse because it’s unpredictable what will happen financially when it breaks up.”

Which is one reason she advises clients to consider a cohabitation agreement. It seems people are getting the message: 70 percent of AAML members said most of the cohabitation agreements they’re seeing are for straight couples.

Regardless of legal status, there are winners and losers in every split. Lisa knows she would have had more rights if she’d married her partner of 17 years. But it would have taken longer to complete a divorce. And, she adds, her retirement funds are worth more than her ex’s, and he won’t have rights to them.

“My attorney said that not marrying him was the best thing I ever did in this whole mess.”

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