THE HOLISTIC LAWYER

There is a way when love has chosen the other way.

The word “Tao” is an Eastern word meaning “way.” Often used in relation to martial arts, it applies as well to the ways of love. And, like the most effective martial arts, in the way of love we must discard what is useless, adapt what is useful and make it uniquely our own.

Changing with Change Is the Changeless State

Cohabitation is on the rise. Perhaps in response to the rising divorce rate, the marriage rate in America is now declining. In a July 18th article in USA Today, the State of Our Unions 2005 report issued by the National Marriage Project at New Jersey’s Rutgers University indicates that the marriage rate has dropped 50% since 1970.

According to another survey released July 19th by Harris Interactive® and commissioned by www.lawyers.com, a free online directory of attorneys from LexisNexis Martindale-Hubbell, 40 percent of all U.S. adults say they have lived with a romantic partner to whom they were not married. What was an exceptional occurrence 30 years ago is now commonplace, it seems.

I can remember in my 20s when, disillusioned by my own parents’ divorce, I chose instead to live with man for many years. What I didn’t know then was the unique legal and financial implications of such an arrangement. Without the legal rights conferred by marriage, cohabitating couples lack all the legal protections their married counterparts enjoy.

“In the eyes of the law, the marriage relationship generally supercedes all others, automatically giving spouses rights to make legal and financial decisions for one another if one person is incapacitated, for example” says attorney Alan Kopit, lawyers.com’s legal editor. “Unmarried couples may discover during a medical emer-gency that those decisions are left to blood relatives. In the event of the death of one partner, shared property, including a home, may not be automatically transferred to the survivor.”

This shift away from marriage to cohabitation increases instability in families, since cohabiting couples have twice the breakup rate of married couples. In the U.S. 40 percent of these couples also have children. Yet “Cohabitation is here to stay,” says David Popenoe, a Rutgers sociology professor. Like the rising divorce rate, it has become a fact of modern life.

Another factor in this phenomenon is an increase in the number of same sex couples, who may wish to marry but are denied that right in most states. In addition, many same sex couples co-parent children. This creates additional complications when one parent dies and the other parent faces the prospect of being shut out of their child’s life because they are not a biological parent. In their case, they are in the difficult situation of wanting the legal protections of marriage without being allowed to enjoy them. Clearly there is need for another way.

The Perfect Way is Only Difficult For Those Who Pick and Choose

Do not like, do not dislike. All will then be clear. Fact: Michigan will probably not restore the concept of “common law marriage” for unmarried, heterosexual couples. Fact: Michigan probably will not grant same sex couples the right to marry in the near future. So we start by accepting what is. We embrace it by accepting it fully, for this is the only way we can take productive action.

Remember that almost half of these “forgotten” couples will have children, whose lives are also affected by this reality. Realizing this, I asked: “How can we promote the stability of these families and confer upon them the same rights and protections afforded to traditional married couples?” My answer: To create a package of protections and rights that is unique to the needs and desires of each couple.

In some ways this solution is even better than marriage, because it provides the protections and rights of marriage that we do want and eliminates those that we don’t want. I once read there are over 1,000 laws dealing with the rights and obligations of marriage. That’s a lot of law. This is why many “traditional” couples are also now selecting their own terms through prenuptial agreements, although in their case if the prenuptial agreement does not exactly comply with a well-established body of law, it will be thrown out and the law of marital property will kick in.

The tools that are available to couples in a domestic partnership include simple yet vital documents like powers of attorney for healthcare and finances, which specify who is responsible for making decisions if a person is unable to do so him- or herself. This prevents tragic situations like that of Terri Schiavo, the young women who lived in a semi-vegetative state for 15 years in Florida. One simple document indicating her desire would have prevented years of medical and legal trauma.

Other documents let domestic partners decide for themselves how shared property is owned, particularly real estate and bank accounts, to ensure each party has the access and ownership rights they want without going to court. These are the things to deal with now, when the relationship is strong, not later, if and when things go sour.

The most important document on the list is the domestic partnership agreement – a written document outlining a couple’s rights and obligations to each other and their household. This widely underutilized instrument is so helpful in the event a relationship ends. Remember, for better or worse, there’s no divorce court to make decisions in these situations.

These documents and a few others, depending on your situation, put you in control. You can decide at what point you want someone else to have a say in your medical treatment. You can choose exactly to what extent you want your partner to share ownership in real or personal property.

And you can decide such things as visitation rights with the children before any problems occur and without the intervention of a judge who knows nothing about you or your life situation. When I hear from domestic partners, it is most often after the relationship has gone bad and they have none of these tools in place to protect them. Then, there are only two choices: negotiate or litigate. Neither are attractive options in this situation.

Do Not Run Away. Let Go.
Do Not Seek, For It Will Come When Least Expected

There may come a time when same sex couples are legally given the right to marry. There may come a time when heterosexual couples decide to legally tie the knot. It makes little sense, however, to live in a state of limbo until this occurs. When we deal with what is, we can create our own reality and take control of our lives.

Many people feel that the current state of the law in this area is wrong. Yet it is our current reality. Wisdom does not consist of trying to wrest the good from the evil, but rather in learning to “ride” them, like a cork floating on the crests and troughs of the waves. We can work to make positive changes in society. But until they occur, it is wise to deal with what is.

Couples who choose a different way of love than the traditional way can follow the path of wisdom, by creating their own legal protections. There are many paths to the same destination. Honor your own by following it with eyes wide open.

© 2005 Mindy L. Hitchcock

Mindy L. Hitchcock is a family law attorney with 19 years’ experience. She is certified in collaborative law and the collaborative law team approach, a board member of the International Alliance of Holistic Lawyers (IAHL), member of the Collaborative Law Institute of Michigan and a member of the Human Rights Campaign. She is a writer and speaker and maintains two websites, LADY4JUSTICE PLLC, www.lady4justice.com and Mindy’s Access Power Center, www.mindyhitchcock.com. She can be reached at mlhitchcock@lady4justice.com .