Divorce mediation without the divorce

There’s a misconception that a couple must be divorcing to engage in mediation. In an age where second and third marriages are commonplace, it’s not unusual for couples to enter into mediation to sort out an agreement prior to marriage (Prenuptial Agreement), when marriage is not in the plans (Cohabitation Agreement) or when the parties are trying to save a troubled marriage (Marital Agreement).

Today, I would like to talk about mediation of a Cohabitation Agreement.

Cohabitation Agreements are particularly popular with older couples who have decided for a variety of reasons to live together without getting married. These couples often have children, homes, any number of financial assets and many responsibilities and commitments (e.g. care for elderly parents). Because no marriage is contemplated, many of them want to clarify the ground rules while they are living together and who will get what if one of them dies or becomes incapacitated after they move in together.

This type of agreement can take on many shapes and forms. Perhaps the couple buys a home together. The mediation could state that, in the event of death, the house remains available to the survivor until his or her death. At that time, the property can be sold with proceeds being distributed to the heirs of both parties as dictated in the mediation and estate plans.

Now, the above example might sound like a reasonable course of action for an unmarried older couple. Yet a child of one of the couple might feel entitled to a share of the house after his/her parent’s death rather than waiting for the death of the survivor. And, in fact, without a specific agreement to the contrary, they might be entitled to just that.

While this is but one example, there are numerous other issues that could be included in a mediation of this type. It could cover healthcare issues, elder care issues and more.

Disposition of assets purchased by an unmarried couple is another area where clearly stated language in a Cohabitation Agreement could head off conflict between heirs and one member of the couple after the death of the other.

Another scenario could be if one of the couple has a relative, child or parent who requires assistance—financial, medical or some other kind. The Cohabitation Agreement might include language about how that person’s expenses will be paid both during the cohabitation and in the event of the death of the caretaker. For example, the agreement could state there are funds segregated for the dependent. Conversely, there could be language where the survivor spouse does take on that responsibility. It really depends on the couple and the situation.

Part of the reason couples choose divorce mediation is to have control over the terms of the final Divorce Agreement. The same is true of mediation prior to cohabitation.

Older couples choosing to enter into a serious relationship the second, third time—even more—have the wisdom of previous experience. They hope that their family members and heirs are happy for their new situation, but have a decent idea of who is not or who might not be. They enter their new life with the realization they want to minimize the problems between their own family members and their new partner in the future. One of the best ways to do this is to put their objectives and intentions in a legally binding written document.

In last month’s blog, I talked about how I was proud of my clients for the growth they demonstrate from the first meeting to the end of the negotiation. I can honestly say the mediation for a Cohabitation Agreement, for all intents and purposes a lifetime commitment, is also a memorable part of my job.

It’s touching that a couple cares enough about each other to want to leave the other in a good place after one of them is gone even if they are not married. It makes a similar statement to children, grandchildren and other relations. By taking care of the decision-making at the beginning, the relationship can really be about the couple and their remaining years together.