Non-Traditional or Alternative Family

Dad works, the two kids come home from school to cookies and milk supplied by mom who is at home … the days of Ozzie & Harriet are drawing to a close.  Most families today are not mom, dad and two kids.  Increasingly, families are comprised of single parent households, single adults, and co-habitating adults both opposite sex and same sex couples – the alternative or non-traditional family.

The laws have lagged behind, — the today are a better fit for Ozzie, Harriet, David & Rickie.  So for the non-traditional family it is especially important to take steps to fill in the legal gaps to protect their family and their partner.

No Legal Protection for the Unmarried Couple

First, there is no common law marriage in Michigan.  This means that an unmarried heterosexual couple will never acquire marital rights in one another’s property.

Next, there is no marriage, civil unions or  domestic partnership registration for same sex couples in Michigan.  Therefore, these couples have no legal protection and are unable to legally formalize their relationship even if they want to.

The married couple enjoys legal benefits such as presumptions and preferences upon death, even without estate planning documents.  They will be consulted if the other spouse is ill.  They receive social security benefits, have preferences concerning retirement benefits and health insurance.  While it is still important for these couples to plan, there is a legal framework in place to guide the financial and legal affairs in the event of a death or a dissolution of the marriage.

The unmarried couple – the non-traditional couple -does not enjoy these same benefits.  Some couples – heterosexual couples – may choose not to marry – these may be young people living together who acquire property together, it may be the elderly couple who does not want to jeopardize.  their social security and pension benefits.  The same sex couple cannot marry or formalize their relationship even if they would choose to do so.

Some of the legal benefits cannot be “fixed” using legal documents.  An unmarried or non-traditional couple cannot file joint tax returns, cannot receive survivor social security benefits, cannot seek wrongful death proceeds if their partner is killed in an accident, cannot take advantage of estate tax savings.  The family court will also not assist these couples in division of assets in the event that their non-formalized partnership breaks down and they want to go their separate ways.

There are, however, legal steps available to narrow the gap between the rights afford to the married couple and the unmarried or non-traditional couple.

LEGAL SOLUTIONS FOR PROPERTY ISSUES

Domestic Partnership Agreement

First, a non-traditional or alternative couple can enter into a Domestic Partnership Agreement.  This is something akin to a Marital or Pre-Nuptial Agreement that a couple who is marrying would enter into.  This Agreement can address many issues of importance to the couple but at a minimum will specify the division of property upon a death of one partner or upon the dissolution of the relationship.

If real estate is to be purchased, how will it be held?  The partners can hold it jointly – either with the right of survivorship or as tenants in common.  This is a large distinction if either partner has family that he or she would like to have inherit that share of the real property upon his/her death.   Who will be responsible for the payments?  The utilities? The taxes? Would one partner be allowed to live in the home for his/her lifetime?  What would happen upon a dissolution of the relationship?  Should the property be sold and the proceeds split between the couple?

The distribution of personal property is also an issue of concern as significant sums of money can be spent on the acquisition of property: furnishings, electronics, toys.  In the event of a death – who should get these items?  How would these items be divided if there were a break-up?

Estate Planning Documents

As a follow up to a Domestic Partnership Agreement, it is important to have Estate Planning documents that conform to that agreement: Wills or Trusts that specify the distribution of the assets either to a partners family or to their partner upon a death.

As part of the Estate Planning process the couple must look at the issue of powers of attorney both for legal matters and for health care.

For the unmarried couple, the partner is not a relative.  Accordingly, his or she will not be afforded the same ability to visit, talk with medical staff or assist in the direction of medical care.  This can become vitally important in an emergency situation where the sick or injured partner is not in a position to verbally tell hospital staff that their partner should be included in the decision making and visitation.  While vitally important for all people to have a Patient Advocate Designation executed – it is especially important for the unmarried couple to have this signed and a copy given to the local hospital as well as their treating physician.   There are times when the relatives the unmarried couple would attempt to exclude the partner from decision making and visitation – this necessary step can avoid such a conflict.

As with medical issues, so too with legal matters – a Durable Power of Attorney is even more important for the unmarried couple.  This allows business, banking, and the like, to continue without interruption in the event of an emergency.  It also prevents one of the partner’s relatives from assuming control to the exclusion of the other partner.

ISSUES CONCERNING MINOR CHILDREN

While the property issues are difficult – they are minor league when compared with the issue of children  - this is in turn further complicated if the couple is same sex.

For an unmarried or non-traditional couple, whether each of the parties is the biological parent of the child(ren) or not, the issue of custody of the children will be handled by the courts.

In the event of a split, if the heterosexual sex couple are also both the biological parents of the child, then each have parenting rights – both legal and physical custody – therefore, there will be a custody order put into effect.  In the event that one of the partners is not a biological parent, he or she will not have rights.

In the event of a death, the surviving biological parent will have custody rights – unless they are unfit.  This is a difficult issue for a parent who is separated from the other biological parent and would like to specify that custody and guardianship of his/her child would go to someone other than the child’s remaining biological parent.  It is wise, however, to specify in a Will, who would be the guardian of the minor child in the event that the remaining biological parent is unable or uninterested in assuming custody.   While a partner may have assisted in raising a child, if he or she is not the biological parent, then he or she will not in all likelihood have the opportunity to assume guardianship upon the child’s parent’s death.

The situation for  a same sex couple is much different.  The state does not recognize two legal moms or two legal dads.  Therefore, if one woman partner has a child, it cannot be the child of the other.  The other mom cannot legally adopt at this point in Michigan.  If the father is not identified, the biological mom can specify in her Will that her partner would be the guardian in the event of her death.   This would prevent disgruntled relatives from coming in and trying to take the child out of the home in the event of a death.

For two dads, one would be an adoptive dad – but only one.  Again as with the two moms scenario, there can be a provision made for the death of the legal dad.  This would provide continuity for the minor child and would reflect the child’s world.

For a dissolution of the relationship – for a split up – the non-legal parent will have no rights.  This is unlike the situation of biological parents who are living together and not married.  Here, the partner is like a step-parent who will not have any legal standing to go into family court for custody or for visitation.   In this situation, the law does not recognize the fact that the two moms or two dads are functioning as a family unit and that they each have a parental relationship with the child.   This is a desperately difficult scenario for which there is no legal remedy.  In a bitter break-up, the partner can lose and the child can lose.

CONCLUSION

The non-traditional or alternative family is increasingly the rule as opposed to the exception to the rule – yet the laws have lagged behind.  As always, planning is the key.  Honest discussion of the issues and execution of  the appropriate legal documents can fill the gap and protect the family and all the members of the family.

Legal planning can assist the partners with issues concerning property rights, guardianships for minor children, and medical issues.