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October 8, 2010

Cohabitation Agreements Make Sense For New York Parents Who Choose Not To Marry

The New York Times recently reported that marriage rates are down in the U.S, and for the first time the number of young adults who have never married are exceeding the number who have. Instead of marrying, more and more couples are choosing to live together. Many of them are choosing to have children as well. Sociologist Andrew Cherlin of Johns Hopkins explained that the decline in marriage among adults ages 25 to 34 is related not only to the recession, but also to more acceptance in society of couples who aren't married, even when they choose to have children together.

This trend is expected to continue, but because New York State does not automatically provide biological parents with all the rights of married parents, cohabitating parents need to be proactive in establishing their legal rights. For example, in New York, biological fathers need to sign an acknowledgment of paternity pursuant to Family Court Act ยง516-a at the time of the child's birth in order to be granted custodial rights in the future and to provide the child with rights to the father's estate in the event of his death. It is not enough to have the father's name on the birth certificate. This acknowledgment can protect both parents from expensive and time-consuming court proceedings later if the couple separates. Absent the acknowledgment, the parties could find themselves in Family Court with the father trying to prove he is the biological parent and entitled to custody and parenting rights, and/or the mother trying to prove she is entitled to child support. Additionally, if the biological father dies before paternity is established, the mother may end up in Surrogate's Court trying to prove that the child is the father's legal heir.

But even with a signed acknowledgment of paternity, if a biological mother unilaterally moves with the child away from the biological father he will need to seek a court order to have the child returned. It would be unlikely that the police would get involved if his custodial rights were not yet established by agreement or through the Family Court. To prevent this type of nightmare, it's suggested that when the couple is happy and are able to negotiate on good terms, they retain family law attorneys to draft a legally binding agreement stating their rights regarding the children, child or spousal support (if they marry in the future) and economic issues between them such as the division of property and joint debts. They should also speak with a trusts and estates attorney to establish their rights in the event of death. Unmarried couples can easily establish their rights through the execution of these necessary documents. They just need to be proactive when times are good so that they can protect themselves if the relationship ends.