Legal Encyclopedia

Legal Encyclopedia contents

Special education law
Getting married: An overview
Fiancé & newlywed finances: A checklist
Marriage rights and benefits
Returning an engagement ring
Living together contracts
Health care directives and financial powers of attorney for your partner
Claiming an unmarried partner as a dependent on your tax return
Conservatorships and guardianships

Legal FAQ contents

How guardianships work FAQ
Establishing and maintaining a guardianship FAQ
Marriage requirements, licenses, and ceremonies FAQ
Common law marriage FAQ
Property rights of unmarried couples FAQ
Parenting for unmarried couples FAQ

Content on this page is © 2009 Nolo and is reprinted on the Rice Law, PLLC site with permission of Nolo.
Nolo’s aim is to make America’s legal system accessible to everyone.

Special education law

An overview of special education laws, IEP, and your child’s special education rights.

Special education laws give children with disabilities and their parents important rights. Specifically, the federal Individuals with Disabilities Education Act (IDEA) gives families of special education children the right to:

have their child assessed or tested to determine special education eligibility and needs,
inspect and review school records relating to their child,
attend an annual “individualized education program” (IEP) meeting and develop a written IEP plan with representatives of the local school district, and
resolve disputes with the school district through an impartial administrative and legal process.

Eligibility under IDEA

Every school district is legally required to identify, locate, and evaluate children with disabilities (20 U.S.C. §1412(a)(3)). After the evaluation, the district may provide the child with specific programs and services to address special needs.

IDEA defines “children with disabilities” as individuals between the ages of three and 22 with one or more of the following conditions:

mental retardation,
hearing impairment (including deafness),
speech or language impairment,
visual impairment (including blindness),
serious emotional disturbance,
orthopedic impairment,
autism,
traumatic brain injury,
specific learning disability, or
other health impairment

(Refer to 20 U.S.C. §1401(3); 34 C.F.R. §300.8.)

For your child to qualify for special education under IDEA, it is not enough to have one of these disabilities. There must also be evidence that the disability adversely affects your child’s educational performance.

Once a child is found eligible for special education, subsequent evaluations take place at least every three years. If you are not satisfied with the initial evaluation or you feel your child’s disability or special education needs have changed, your child is entitled to more frequent assessments, and even outside or independent assessments (20 U.S.C. §1414; 34 C.F.R. §300.301-306).

Individualized Education Program (IEP)

Under IDEA, special education develops and implements an individualized education program, or IEP, that meets your child’s unique needs. The acronym IEP refers to several related things:

an initial meeting where the school district determines whether or not your child is eligible for special education,
a yearly meeting where you and school representatives develop your child’s educational plan, and
a detailed written description of your child’s educational program.

Every written IEP document must include the same information, although forms will vary from one school district to another.

Current educational status—a description of your child’s current “academic achievement and functional performance” in school.
Goals and objectives—“measurable annual goals” designed to meet your child’s specific educational needs.
Instructional setting or placement—a determination of the situation and services needed to provide your child with an appropriate education.
Transition services—considerations of the vocational and placement needs for a child who is 16 or older.
Due process—your right to take any dispute you have with your child’s school district to a neutral third party for resolution. (Parents of children who are not in special education do not have this right.)

For more information on IEPs, read Nolo’s article Preparing for the IEP Meeting.

Special education law: 2005 changes

In 2005, Congress made important modifications to IDEA. While most special education rights and procedures remain the same under this new law, there have also been numerous and significant changes. For instance, the new law affects:

teacher qualifications,
teaching methods,
transition services,
how a school may identify a child with a learning disability, and
the content, development, review, and revision of IEPs.

In August 2006, the Department of Education issued regulations interpreting the revised IDEA. The new regulations went into effect on October 14, 2006.

These regulations add requirements and rules that go well beyond the scope of the actual law. If you have a child in special education, it is important that you understand how the regulations affect your child’s rights. You can download and read the text of the regulations on the website of the Department’s Office of Special Education and Rehabilitative Services (OSERS) at www.ed.gov/about/offices/list/osers. Or, contact your state department of education, your school district, or local support groups to find out how these changes will affect special education in your community.

Sources of information about special education and IDEA

Your local school district. The district is required by the IDEA to provide you with a copy of federal and state statutes and regulations and any relevant policies. Be sure to request this information, along with the school district’s IEP form and any parent guide that’s available.
Local parent support groups. In many communities, local organizations offer support and information for parents of children in special education. The groups in your area may have helpful information about your school district and how it complies with IDEA.
U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS). For information on the IDEA and special education law, visit OSERS at www.ed.gov/about/offices/list/osers.
Your state department of education. The federal IDEA is binding on all states. The federal government provides financial assistance to the states, which are responsible for making sure the local school districts comply with the IDEA. Most states have laws that generally parallel IDEA. States can provide children with more, not fewer, protections than IDEA does. For more information on state special education laws and regulations, contact your state department of education. Your school district can give you the appropriate office to contact.

For more information on the IDEA, including the 2005 revisions, get The Complete IEP Guide: How to Advocate for Your Special Ed Child, by attorney Lawrence Siegel (Nolo).

Or, if your child has a learning disability (as opposed to another type of disability), read Nolo’s IEP Guide: Learning Disabilities, in which Lawrence Siegel tailors his discussion of special education and IEPs specifically for the parents of children with learning disabilities.

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Getting married: An overview

What to expect before and after marriage.

Getting married is a big decision, and it isn’t just about making a lifelong commitment to your partner: Marriage is a legal contract. When you get married, you not only accept rights and benefits but also take on legal and financial obligations.

Definition of marriage

Marriage is the legal union of two people, who are joined together after they obtain a marriage license from their state and take part in a ceremony. In most states, only a man and a woman can get married, but in California and Massachusetts, same-sex couples can marry too. In some other states, same-sex partners can enter into marriage-like relationships with rights and obligations similar to those of marriage. )

In some states, heterosexual couples can become legally married without a license or ceremony. This type of marriage is called a “common law” marriage. A common law marriage is created when two people live together for a significant period of time (not defined in any state), hold themselves out as a married couple, and intend to be married.

Before the wedding

When you get married, the rights and responsibilities of that relationship are defined by the laws of the state in which you live. However, you and your spouse may be able to modify the rules by creating a premarital (or prenuptial) agreement (for example, you can agree to keep your property separate). Before you say “I do,” you might want to consider the following:

How should we manage our assets? (Can we keep some items separate?)
Should I sign a prenuptial, or premarital, agreement?
How can I create a legally binding prenuptial agreement?
Do I need a lawyer to make a prenuptial agreement?

Marriage requirements

Whether you opt for a simple ceremony in City Hall or a black-tie gala with all the trimmings, you’ll need to meet some basic requirements and make certain legal and financial preparations for your impending marriage. You’ll need to know the answer to these questions:

What are the legal requirements for marriage?
How can I get a marriage license and certificate?
Do we need to get blood tests before getting a license?
Who is allowed to perform the ceremony?

Marriage rights and benefits

Once you’re married, you receive numerous rights and benefits. These range from tax and inheritance benefits, to alimony and child support in the event of a divorce, to your right to take bereavement leave from your job if your spouse should die. Marriage rights and benefits fall into the following categories:

tax benefits, when you file jointly with your spouse
estate planning benefits, including inheritance rights
government benefits, including receiving Social Security, Medicare, and disability benefits for your spouse
employment benefits, such as obtaining health insurance through your spouse’s employer and the right to take medical leave to care for a spouse who becomes ill
decision-making benefits, including the right to make medical decisions if your spouse is incapacitated
financial support, including equitable property division in a divorce
consumer benefits, such as family rates for health, homeowners’, auto, and other types of insurance.

Financial responsibilities of marriage

You will take on certain responsibilities when you get married. The responsibilities vary from state to state, but commonly include the following:

financial support of the children of the marriage,
liability for certain kinds of family expenses,
sharing income and property acquired during the marriage, and
financial responsibility for your spouse in the case of a divorce.

After the wedding

After you’ve tied the knot, you are legally joined to your spouse. This means that, when the honeymoon’s over, you may be in line for some paperwork. All of the following are optional, however, depending your relationship:

Change your name legally.
Add your spouse to your health insurance policy.
Add your spouse as your beneficiary on bank accounts, retirement plans, securities, and life insurance policies.
Update your estate planning documents: will, trusts, powers of attorney, and living wills.
Adopt your spouse’s children.

Want to Learn More?

Nolo’s book, Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner, Attorney-Mediator and Shae Irving, J.D., provides detailed information on every state’s laws about prenups and marital property. It also explains what you can and can’t do with a prenup, helps you decide whether or not you need one, and walks you step by step through the process of drafting your own agreement.

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Fiancé & newlywed finances: A checklist

Before getting married, or soon after, discuss marriage finances and make a budget.

In just about any long-term relationship, finances will come into play, and in a marriage, it’s essential to manage finances well together. Whether you’re about to get married or have already tied the knot, it’s a good idea to sit down with your partner and discuss money.

With finances, as with many things in life, an ounce of prevention is worth a pound of cure. If you and your partner approach your finances in a direct, matter-of-fact way early in the marriage, you’ll provide a solid foundation for your relationship, and for your finances, as time goes on.

Financial talking points

When you sit down to talk with your fiancé or spouse, begin by sharing the current state of your finances. It’s important to be frank and nonjudgmental. Fudging the numbers or concealing certain items from your partner could result in serious problems later. What’s important is making sure your plan for going forward is one to which you are both committed. Here are some basics to go over:

what’s important to each of you when it comes to finances
how you will manage your assets (what to combine, what to keep separate)
will you use the same bank account? credit cards?
how you will deal with differences in income
how you will manage the payment of expenses, and
what to do if your fiancé or spouse has incurred a lot of debt.

Planning for the future

In your discussion of finances, it’s worth discussing future costs, even if you can’t know exactly what these will be. Do you plan on buying a house together? Having children? Taking a trip around the world? Moving? All of these things require significant financial investment. Be sure to discuss the following:

financial goals you are working toward,
new furniture or other items you will purchase and own together,
how to save up to buy a house,
how to plan for having children,
how to fund retirement plans, and
any other plans do you want to put in place for the future.

Making a budget

Sit down with your partner and make a budget.

Income

Salary or wages
Bsiness income
Property income
Investment income

Assets

Bank accounts (with balances)
Investments (stocks, bonds, retirement accounts)
Property

Debts

School loans
Mortgages
Home equity loans
Business loans
Credit card debts
Loans from parents or family

Expenses

Rent/mortgage
Utilities
Food
Clothing
Car/transportation
Support for children from a previous marriage
Insurance
Entertainment
Travel
Education
Loan and credit card payments
Taxes
Retirement contributions
Other purchases (household goods, toys, electronics, and so on)

Making your financial relationship work

Once you’ve made these lists, consider the following:

Do you and your partner have enough income to meet your expenses?
Which assets will you keep separate, and which will you share?
Which expenses will you keep separate, and which will you share?
What should you do if one partner isn’t meeting his or her expenses?

Whatever your financial situation, it’s always better to be open and honest than to be unpleasantly surprised in a moment of stress or crisis.

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Marriage rights and benefits

Learn some of the legal and practical ways that getting married changes your life.

Whether or not you favor marriage as a social institution, there’s no denying that it confers many rights, protections, and benefits—both legal and practical. Some of these vary from state to state, but the list typically includes:

Tax benefits

Filing joint income tax returns with the IRS and state taxing authorities.
Creating a “family partnership” under federal tax laws, which allows you to divide business income among family members.

Estate planning benefits

Inheriting a share of your spouse’s estate.
Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.
Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.
Obtaining priority if a conservator needs to be appointed for your spouse—that is, someone to make financial and/or medical decisions on your spouse’s behalf.

Government benefits

Receiving Social Security, Medicare, and disability benefits for spouses.
Receiving veterans’ and military benefits for spouses, such as those for education, medical care, or special loans.
Receiving public assistance benefits.

Employment benefits

Obtaining insurance benefits through a spouse’s employer.
Taking family leave to care for your spouse during an illness.
Receiving wages, workers’ compensation, and retirement plan benefits for a deceased spouse.
Taking bereavement leave if your spouse or one of your spouse’s close relatives dies.

Medical benefits

Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.
Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.

Death benefits

Consenting to after-death examinations and procedures.
Making burial or other final arrangements.

Family benefits

Filing for stepparent or joint adoption.
Applying for joint foster care rights.
Receiving equitable division of property if you divorce.
Receiving spousal or child support, child custody, and visitation if you divorce.

Housing benefits

Living in neighborhoods zoned for “families only.”
Automatically renewing leases signed by your spouse.

Consumer benefits

Receiving family rates for health, homeowners’, auto, and other types of insurance.
Receiving tuition discounts and permission to use school facilities.
Other consumer discounts and incentives offered only to married couples or families.

Other legal benefits and protections

Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).
Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).
Claiming the marital communications privilege, which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage.
Receiving crime victims’ recovery benefits if your spouse is the victim of a crime.
Obtaining immigration and residency benefits for noncitizen spouse.
Visiting rights in jails and other places where visitors are restricted to immediate family.

Note that if you are in a same-sex marriage in Massachusetts or a domestic partnership or civil union in any of the states that offer those relationship options, many of the benefits of marriage won’t apply to you, because the federal government does not recognize these same-sex relationships. For example, you may not file joint federal income tax returns with your partner, even if your state allows you to file jointly. And other federal benefits, such as COBRA continuation insurance coverage, may not apply. Consult a lawyer with expertise in this area to learn more about the rights and benefits available to same-sex couples.

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Returning an engagement ring

If the engagement is over, state law decides who keeps the engagement ring.

The engagement is over. In addition to the sorrow, the heartbroken must deal with the question of whether the engagement ring need to be returned—along with the deposits left with the caterer, the florist, and the dressmaker.

State courts around the nation that have considered the issue—whether a bride can keep the engagement ring or whether she must return it—have reached different conclusions.

When is a gift a gift?

Courts generally treat the engagement ring as a gift, from the donor (the person who gave the ring) to the donee (the person who received it). To be considered a legal gift, three things must be present: the donor’s intent to give the ring as a gift, the donor’s delivery of it to the donee, and the donee’s acceptance of the item. If the person to whom the ring was given can show all three elements, a court will consider the ring to be a gift.

Conditional gifts

However, the majority of courts also consider such a gift to be a conditional one. That means that, until some future event occurs, the gift isn’t final; if that event does not occur, then the donor has the right to get the gift back. In real life, many parents use this concept by, for example, giving a teenage daughter the keys to the family car, on the condition that she maintain a certain grade point average for a specified period of time. If she doesn’t make the grade, the keys must be returned.

Women who want to keep their engagement rings often argue that the condition needed to make the engagement ring a final gift is simply the acceptance of the proposal of marriage, not the completion of the marriage ceremony. That way, if the engagement is broken, the ring remains her property.

However, this argument often loses. The majority of courts find that the gift of an engagement ring contains an implied condition of marriage; acceptance of the proposal is not the underlying “deal.” Absent some other understanding—say, that the ring is merely a memento of a great trip to Hawaii—most courts look at engagement rings as conditional gifts given in contemplation of marriage:

The Supreme Court of Montana has come down on the opposite side of this fence, rejecting the conditional gift theory and declaring that an engagement ring is an unconditional, completed gift. Ex-fiances in that western state are unlikely to get help from the courts if they want to get an engagement ring back. Albinger v. Harris, 2002 WL 1226858 (Mont. 2002).

Fault for the break-up

When divining who gets to keep the engagement ring, courts also do not agree on whether it should matter who did the breaking up or why.

Courts that do consider the reasons for the breakup

To some judges, it isn’t fair that the donor should always get the ring back, especially if the donee stood ready to go ahead with the marriage and the donor broke it off. These same judges think it would be unfair for the donee to keep the ring if the engagement was broken because of the donee’s unfaithfulness or other wrongdoing. In such cases, they order that the ring should be returned to its purchaser. This “fault-based” rule is the majority approach.

For example, consider the case of George J. Pavlicic, a 75-year-old man, who had a romance with Sara Jane Mills, aged 26. They became engaged in 1949. He bought her a house, two cars, an engagement ring, and a diamond ring in anticipation of their marriage. George then lent her a significant amount of money, including $5,000 to buy a saloon. Sara Jane then disappeared. The next time she was heard from, she had indeed used the $5,000 to buy a saloon, but it was in another city, and she had married another man.

George went to court. He wanted everything that he’d given Sara Jane back—and he won. Pavlicic v. Vogtsberger, 136 A.2d 127, 130 (Penn. 1957).

Some courts applying a fault-based rule consider the exchange of the ring to be more like a contract than a conditional gift: The ring is just a symbol of the agreement to marry. If that agreement is not performed, then those involved should be restored to their former positions—as they would be if the contract was for, say, the delivery of a bushel of wheat—and the ring should be returned to the person who first had it. But if the donor backs out, the donee should keep the ring, because a person who breaches contracts should not be rewarded for doing so. Spinnell v. Quigley, 785 P.2d 1149 (1990).

Courts that don’t consider the reasons for the breakup

Other judges think that the whole matter of who broke up with whom isn’t any of their business. If the wedding’s off, they say, the donor should get the ring back, regardless of why, where, when, or at whose behest the engagement ended. After all, they reason, no-fault divorce makes it possible for marriages to end without bitter court fights over whose fault it was; engagements should be treated the same way.

Just a few years ago, the Supreme Court of Pennsylvania stuck steadfastly to the no-fault reasoning and decreed that the donor should always get the ring back if the engagement is broken off, regardless of who broke it off or why. Lindh v. Surman, 742 A.2d 643 (Pa. 1999). Iowa, Kansas, New Jersey, New Mexico, New York, and Wisconsin have the same rule.

Justices on the Supreme Court of Kansas, which also adopted the no-fault rule in 1997, detailed the difficulties that they imagined would be theirs with a fault-based approach:

[S]hould courts be asked to determine which of the following grounds for breaking an engagement is fault or justified? (1) The parties have nothing in common; (2) one party cannot stand prospective in-laws; (3) a minor child of one of the parties is hostile to and will not accept the other party; (4) an adult child of one of the parties will not accept the other party; (5) the parties’ pets do not get along; (6) a party was too hasty in proposing or accepting the proposal; (7) the engagement was a rebound situation which is now regretted; (8) one party has untidy habits that irritate the other; or (9) the parties have religious differences.
Heiman v. Parrish, 942 P.2d 631, 637 (Kan. 1997).

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Living Together Contracts

Learn what a living together contract is and whether or not you need one.

A contract is no more than an agreement to do (or not to do) something. Marriage is a contractual relationship, even though the “terms” of the contract are rarely stated explicitly or even known by the marrying couple. Saying “I do” commits a couple to a well-established set of state laws and rules governing, among other things, the couple’s property rights if they split up or when one of them dies.

Unmarried couples, on the other hand, do not automatically enter into a contract when they start a relationship. If you want to legally establish how you will own property during your relationship, as well as what will happen if you separate or if one of you dies, you must write out your own rules. (Married couples do something similar when they create a premarital agreement. Your agreement will be legally called a “nonmarital agreement,” but we prefer the term “living together contract.”)

Some couples find it unromantic or depressing to even think about making a contract governing mundane details like money and property, particularly if doing so involves thinking about what might happen in the event of separation. But preparing a sound living together agreement can help you in a whole host of ways. Practically speaking, your agreement will help you avoid trouble when you mix your money and property, and it will make clear your intentions and expectations regarding property ownership, household expenses and the like. It can also greatly ease the division or distribution of property after a breakup or death. On a more personal note, the process of negotiating and drafting your agreement may well strengthen your abilities to communicate with and understand each other.

That said, here’s an overview of the legal rules and practical concerns you should think about before drafting a contract of your own.

Legal rules governing Living Together Contracts

For the most part, courts and judges—not legislatures—have made the legal rules governing living together contracts. The leading court case is the well-known Marvin v. Marvin, 557 P.2d 106, decided by the California Supreme Court in 1976. It involved the actor Lee Marvin and the woman he lived with, Michele Triola Marvin. (She used his last name even though they weren’t married.) In its decision, the court announced what were to become the common legal principles governing the right of unmarried couples to make contracts. First, the court ruled that marital property laws do not apply to couples who are not legally married. Then, the court recognized that unmarried couples are here to stay. Finally, the court declared four contract principles:

Unmarried couples may make written contracts.
Unmarried couples may make oral contracts.
If a couple hasn’t made a written or oral contract, the court may examine the couple’s actions to decide whether an “implied” contract exists.
If a judge can’t find an implied contract, she may presume that “the parties intend to deal fairly with each other” and find one partner indebted to the other by invoking well-established legal doctrines of equity and fairness.

Although Marvin directly applies only in California, other states have upheld the application of these principles to contracts made by unmarried partners—both straight and gay. Depending on the state, however, a court may follow different legal rules. Almost all states now enforce contracts between unmarried partners, although in some states only written contracts will be enforced.

Getting help
If you’re not sure whether living together contracts are valid in your state, you’ll need to consult a lawyer or do some legal research of your own. Even if you know that you can make a legal agreement, there are some situations in which you should seek a lawyer’s help.

Get legal advice before signing an agreement if it involves a lot of money or property—or complicated estate planning. This is just common sense, particularly if one partner has substantially more assets than the other.

Also, you should get help if it might appear that one of you has much greater bargaining power than the other. A living together contract may not be enforced if a judge concludes that one person has taken unfair advantage of the other. For example, a court is unlikely to uphold a one-sided living together contract entered into between an experienced lawyer and an unsophisticated but wealthy 19-year-old who just moved to America and speaks little English, under which the immigrant agrees to support the lawyer.

When you need a Living Together Contract

Obviously, you don’t need a contract if you are in a brief relationship. But in a long-term and serious partnership, whether you’re basking in the glow of having just “joined forces” or you’ve been together 20 years, you should consider the legal consequences of dealing with money and property. If you are planning to mix assets or share expenses, you should most definitely put your agreement in writing, especially if a significant amount of money is involved. If you’re both stone-broke, with no property and little prospect of getting any soon, you can still benefit by deciding how you will handle money and property if it ever arrives. Also, you can put more emphasis on the practical issues of day-to-day living together, such as how expenses will be paid.

What to include in a Living Together Contract

A living together contract can be comprehensive, covering every aspect of your relationship, or it can be specific, covering only one transaction (such as a new house purchase). These contracts need not be like the fine-print monsters pushed at you when you buy insurance or a car. You can, and should, design your contract to say exactly what you both want, in words you both understand. A simple, comprehensible and functional document using common English is much better than one loaded with “heretofores” and “pursuants.”

If you want your living together contract to include personal details about your relationship, make two agreements. The first one should pertain only to property and finances. Then, if the worst ever happens and you find yourselves in court, the property and finance terms will be the only ones a judge sees. Write up a second agreement, if you wish, about who will do the dishes, who will walk the dog, how many overnight guests you’ll allow and whose art goes in the living room. A court won’t—and shouldn’t be asked to—enforce this kind of agreement. In fact, if you do make just one agreement that includes personal as well as financial clauses, you run the risk that a court will be distracted by the personal clauses and will declare the entire contract illegal or frivolous, thus negating the more important financial clauses.

Here are the issues that couples most often include in a living together contract:

Property and finances clauses
Your living together agreement should cover all of your property—including the property you had before you began the relationship, as well as the property either or both of you accumulate during it.

Property owned before living together. You each probably had some property before you met. Making an agreement about this property may seem unnecessary, but it’s not. Think about trying to sort things out ten years from now, when you’ve both been referring to everything around the house as “ours.” You can agree to keep all of your previously owned property separate, or you might want to share some or all of it with each other. Do what suits you best.

Property inherited or received by gift during the relationship. Many people will want to keep separate the property they inherit or receive by gift. Others will want to “donate” the property to the relationship. Again, it’s up to you. Remember that any property given to both of you is legally owned by both—this includes gifts you receive at a commitment ceremony or anniversary party, even if given by a relative or friend of just one of you.

Property bought during the relationship. Many people make purchases item by item, understanding that whoever makes the purchase owns the property. Purchases can also be pooled. A consistent approach to property ownership may simplify things, but is required by neither law nor logic. Some items may be separately owned, some pooled 50-50, and some shared in proportion to how much money each contributed toward the purchase price or how much labor each put into upkeep.

Expenses
Your agreement should cover how you want to handle expenses during your relationship. For example, how will you divide the day-to-day costs for food, utilities, laundry, housing and the like, especially if expenses increase or decrease? Here are a few suggestions about how to share expenses:

Share and share alike. Many couples have only one checking account. They both deposit their paychecks into it and pay all household bills out of it. They figure it all evens out in the end.
Split 50-50. Some couples prefer this method. When one partner buys something for the house or pays a bill, he writes his name on the receipt and throws it into a jar. Every few months, they empty out the receipt jar and total up how much each has spent. One then writes the other a check to even things up.
Each contributes in proportion to her income. This works especially well for people with large income discrepancies.

Separation or death
It’s wise to include at least brief provisions in your agreement stating what will happen if you split up or if one of you dies. You may simply want to say that if you separate, each of you will have the right to take immediate possession of your separate property and that all jointly owned property will be divided equally. If there is property that you own together—but not in equal shares—you’ll want to specify a method for dividing it between you.

Though it may be difficult to think about it, it’s especially important to consider what will happen if one of you dies. Without properly prepared documents, members of an unmarried couple have no right to inherit property from one another. You can use your living together agreement to specify how you want to provide for each other; it will serve as strong evidence of your intentions. Be aware, however, that writing out a plan in your agreement is not enough. You should also use a will, living trust or other estate planning documents to ensure that your plan is carried out as you wish. For more information about ways to leave your property at death, see the Wills and Estate Planning area of Nolo’s website.

Dispute resolution
We recommend that every couple who prepares a living together contract include a method for resolving any disagreements that later arise out of it. Traditionally, it this type of dispute was severe, a couple had to go to court to resolve it, but there are better alternatives now. You may want to make mediation your first-choice method for resolving disputes, stating in your agreement that you will choose a third party to help you resolve any disagreements about your living together contract. If mediation is unsuccessful, you might allow either partner to submit the dispute to formal and binding arbitration. This should be enough to avoid the complications and expenses of a lawsuit.

What happens to your Living Together Agreement if you get married?

Your living together contract will be enforceable after marriage only if it was created shortly before your marriage at a time when you both planned to marry. To be enforceable, prenuptial (or premarital) contracts must be made in contemplation of marriage. For more information, see the Prenuptial Agreements section of Nolo’s website.

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Health Care Directives and Financial Powers of Attorney for your partner

To have the power to make medical and financial decisions for your partner, you must prepare the right legal documents.

If you ever become unable to make your own health care decisions or manage your own finances—because of injury, serious illness, or advanced age—you probably want your partner to step in and take care of you. Unfortunately, unmarried partners, unlike their married counterparts, often aren’t permitted to handle medical or financial decisions for each other without signed authorization.

There are a few simple legal documents you should prepare if you want to ensure that critical decisions stay in the hands of your partner: a durable power of attorney for finances and health care directives.

Without these documents, your partner may face tremendous emotional and practical problems when trying to make health care decisions for you in the event of a medical emergency or handle a simple financial transaction on your behalf when you’re not able to. At worst, your health care and finances may be placed in the hands of a biological relative who won’t consider your partner’s input, and this relative may well make decisions that go against what you want.

Fortunately, the documents you need are straightforward and usually easy to complete. (To learn more about both medical and financial powers of attorney, see Nolo’s Power of Attorney Resource Center.)

Health care declarations. First, you need a health care “declaration,” a written statement you make directly to medical personnel that spells out your wishes for medical care if you become incapacitated. Your declaration functions as a contract with your treating doctor, who must either honor your wishes for health care or transfer you to another doctor or facility that will honor them.

Durable powers of attorney for health care. The second document is usually called a “durable power of attorney for health care.” In this document you appoint the person you choose—most likely your partner—to see that your doctors and other health care providers give you the kind of medical care you want to receive. You can also use your durable power of attorney for health care to give your partner (who may be called your “attorney-in-fact,” “agent,” or “proxy,” depending on where you live) other rights to participate in your medical care, including:

directing your health care under any circumstances that you don’t specifically address in your declaration,
hiring and firing medical personnel,
visiting you in the hospital or other facility even when other visitors are restricted,
having access to medical records and other personal information, and
getting court authorization to enforce your health care wishes if a hospital or doctor refuses to honor them for any reason.

Advance health care directives. In some states, your declaration and durable power of attorney for health care will be combined into a single document, often called an “advance health care directive.”

Who can make Health Care Directives?

You can make valid health care directives if you are at least 18 years old and of sound mind. Being of sound mind essentially means that you are able to understand what the document means, what it contains, and how it works. Physically disabled people may make valid health care documents; they can direct another to sign for them if they are unable to do so.

You may change or revoke your health care directives at any time as long as you are of sound mind.

Financial Powers of Attorney

A durable power of attorney for finances allows you to name someone you trust (called your “attorney-in-fact” or “agent”) to handle your finances if you become unable to take care of yourself. Every state recognizes this type of document. (To learn more about financial powers of attorney, read Nolo’s article Durable Financial Power of Attorney: How it Works.)

As with documents directing medical care, you should seriously consider making a durable power of attorney for finances if you want your partner to manage your money if you become unable to. If you don’t prepare the document and you later become incapacitated, your partner or other family members will have to ask a court for authority over your financial affairs. These proceedings, called “conservatorship proceedings,” can be time-consuming and expensive—and they can be disastrous for unmarried couples if the court names another family member to take over, especially if your finances have been intertwined with those of your partner for a long time.

You can make your financial power of attorney effective immediately, or you can specify that it should go into effect only if you become incapacitated; the latter is called a “springing” power of attorney. While some people are more comfortable making a springing document, an immediately effective document holds a potential advantage for unmarried couples in a long-term, trusting relationship. If you make your document effective immediately, your partner can handle financial transactions for you at any time, even when you are not incapacitated. This can be useful if you are out of town, under the weather, or temporarily unavailable for any other reason.

When you make a durable power of attorney for finances, you can give your partner (or other attorney-in-fact) as much or as little control over your finances as you wish. The powers you grant may include:

using your assets to pay your bills and everyday expenses,
buying, selling, maintaining, paying taxes on, and mortgaging real estate and other property,
collecting benefits from Social Security, Medicare, or other government programs or civil or military service,
investing your money in stocks, bonds, and mutual funds,
handling transactions with banks and other financial institutions,
buying and selling insurance policies and annuities for you,
filing and paying your taxes,
operating your small business,
claiming property you inherit or are otherwise entitled to,
hiring someone to represent you in court, and
managing your retirement accounts.

Like health care directives, you can make a durable power of attorney for finances if you are at least 18 years old and of sound mind. And you can change or cancel your document at any time, as long as you are of sound mind.

If you live in California, you can learn everything you need to know about powers of attorney in Living Wills & Powers of Attorney for California, by Shae Irving (Nolo).

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Claiming an unmarried partner as a dependent on your tax return

To claim tax benefits for your dependent partner, there are five tests your partner must pass.

If you financially support your partner (heterosexual or same-sex), you may be able to file a tax return as a single person and claim your partner as a dependent. To be able to do this legally, you must meet the following five tests.

Support. The supporting partner must provide at least 50% of the other partner’s total support for the year. Support includes food, shelter, clothing, medical and dental care, education, entertainment, and just about any expense you can think of.

Citizen or resident. The supported person must be a U.S. citizen, resident alien, or citizen of Canada or Mexico.

Income. The supported person’s taxable income cannot exceed $2,900. Nontaxable money, such as gifts, welfare benefits, and nontaxable Social Security benefits, don’t count toward gross income.

Relationship. Under IRS regulations, a person who lived in your home for the entire year can be considered a dependent as long as the relationship does not violate local law. Our advice: If you meet the other four tests but may be violating the law in a state where fornication, cohabitation, or sodomy is still against the law, go ahead and claim your partner as a dependent anyway. Recent court decisions have made those laws questionable at best, and the worst that can happen is that the IRS won’t allow your deduction and your tax bill will be recomputed without the deduction.

Unmarried person. If the supported person is married and files a joint tax return with a legal spouse, the supporting partner in this relationship cannot claim the supported person as a dependent. There’s one exception: If the married couple did not earn enough to have to file a tax return and did so only to get a refund, the supporting partner can claim the dependent.

To learn more about laws affecting unmarried couples, get Living Together: A Legal Guide for Unmarried Couples, by Ralph Warner, Toni Ihara, and Frederick Hertz (Nolo).

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Conservatorships and guardianships

How to get help for an adult who can’t manage alone.

If an adult becomes unable to handle day-to-day financial or medical affairs affairs, someone else must step in to take care of things. If the incapacitated person planned ahead and signed durable powers of attorney for finances and health care, the person named in those documents can take charge.

However, if no planning has been done—a common situation—then family members must ask a court to appoint a conservator or guardian. This person will have the court-ordered authority and responsibility to manage the incapacitated person’s affairs.

Conservatorship vs. adult guardianship

In some states, conservatorships are called adult guardianships, but the terms mean roughly the same thing. For the rest of this article, we will use the term “conservatorship” to refer to adult guardianships and conservatorships.

If a court appoints someone to take care of financial matters, that person is usually called a “conservator of the estate,” while a person in charge of medical and personal decisions is a “conservator of the person.” An incapacitated person may need just one type of representative, or both. The same person can be appointed to take both jobs. Both types of conservators are supervised by and held accountable to a court.

Generally, conservatorships are established for people who are in comas, suffer from advanced Alzheimer’s disease, or have other serious illnesses or injuries.

Pros and cons of a conservatorship

Conservatorships are time-consuming and expensive; they often require court hearings and the ongoing assistance of a lawyer. The paperwork can also be a hassle, because the conservator must keep detailed records and file court papers on a regular basis.

All court proceedings and documents are a matter of public record, which can be an unwelcome intrusion for someone who values independence and privacy.

Conservators are subject to court supervision, which provides a powerful safeguard for an incapacitated adult’s property. To prevent conservators from mismanaging the property or otherwise taking advantage of the people they are helping, most courts require conservators to provide periodic reports detailing their actions. Many courts also require the conservator to seek permission before making major decisions, such as selling real estate (for a financial conservator) or terminating life-support (for a conservator in charge of health care decisions).

In addition, a financial conservator must often post a bond (a kind of insurance policy that protects the conservatee’s estate from mishandling). The bond premiums are paid from the conservatee’s assets—and are an unnecessary expense if the conservator is competent and trustworthy.

Occasionally, however, a conservator will mismanage a conservatee’s assets or make poor choices about the conservatee’s health care. Although each state has rules and procedures designed to prevent such abuses, few have the resources to keep an eye on conservators and follow through if they spot trouble. Many cases of incompetence or mistreatment go unnoticed.

Avoiding a Conservatorship

The best way to avoid a conservatorship is for an older person to prepare durable powers of attorney before a health crisis occurs. That way, someone handpicked will be able to step in to make financial and medical decisions if necessary.

The court process

Anyone—including the proposed conservatee, family members, and friends—may object to the conservatorship in general, or to the specific choice of conservator. Someone who wants to block a conservatorship must file papers with the court, inform all interested parties (the proposed conservatee, family members, and possibly close friends), and attend a legal hearing.

When someone begins a conservatorship proceeding, a judge must hear evidence on the person’s mental capacity. If the judge concludes that a conservator is necessary, he or she will appoint one—commonly, the spouse or adult child.

It’s rare, but sometimes several family members or friends may vie for the job. If that happens, the judge follows preferences established by state law. Most states give preference to the conservatee’s spouse, registered domestic partner, adult children, adult siblings, or other blood relatives. But a judge who thinks someone else is best for the job may pick that person.

Without strong evidence of what the conservatee would have wanted, it is unlikely that a nonrelative would be appointed conservator if a relative is available to serve. Because of this, conservatorship proceedings may cause great heartache if an estranged relative is chosen as conservator over the conservatee’s partner or close friend. If no one suitable is available to serve as conservator, the judge may appoint a public or other professional conservator.

How conservators are compensated

Conservators are reimbursed for expenses, and paid for their services, from the assets of the person they are taking care of. Payments must be “reasonable” in the eyes of a court. Generally, payments are only made to professional or public conservators, but a family member who has been appointed conservator may also seek compensation by making a request to the court.

Financial support for someone under a conservatorship

A conservator isn’t required to support the conservatee, just to manage the conservatee’s own assets and make personal decisions for him or her. A financial conservator does have the responsibility to seek all financial benefits and coverage for which the conservatee may qualify. These benefits may include Social Security, medical insurance, Veterans Administration benefits, pension and retirement benefits, disability benefits, public assistance, and Supplemental Security Income. When needed, close family members (including the conservator) often use their own money to help support a conservatee.

Ending a conservatorship

A conservator must act until the court issues an order ending this responsibility. This ordinarily happens when:

the conservatee dies,
the conservatee no longer needs this level of assistance,
in the case of a financial conservatorship, the conservatee’s assets are used up, or
the conservator resigns or can no longer handle the responsibilities. In this situation, the conservatorship itself does not end, but someone else takes over the conservator’s duties.

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Legal Encylcopedia FAQs

How guardianships work FAQ

Learn the basics about guardianships, including the difference between guardianship and adoption.

What’s below:

What does a guardian do?
What is the difference between a guardianship and an adoption?
When does a guardianship end?
What is a guardian ad litem?
If a child other than my own child lives with me, do I need a guardianship?
Is it true that parents may need a guardianship of their own child?

What does a guardian do?

Typically, a guardian takes care of a child’s personal needs, including shelter, education, and medical care. A guardian may also provide financial management for a child’s assets, although sometimes a second person (often called a “guardian of the estate”) is appointed for this purpose.

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