07/15/2014 09:03 EDT | Updated 09/14/2014 05:59 EDT

Why So Many Couples Get a No-Nup

Recently the New York Times published an article about "no-nuptial" agreements and had several experts on all sides weigh in. "All the Conventional Cohabitation, but No Nuptials" The author looks at a trend towards cohabitation with no plan to marry and the choice couples are making to put an agreement in writing.

The story originated from a Toronto blogger who shared the background to her comprehensive agreement with her partner. They decided to have a baby and move in together, with an agreement the size of a "mini novel". Because this couple is from Toronto, they likely understood that the laws around property and money that apply to unmarried couples who decide to separate are complicated. Of course, they could always work it out, agreement or not.

These are couples making a commitment strong enough to share the diapers and the mortgage, without sufficient optimism to feel sure that they will be able to split the cutlery if it all falls apart. By agreeing to a no-nup, it is clear that they are sure that they share the lifestyle choice to live together and not to marry. But they don't trust one another enough to feel secure about the last chapter of their relationship.

For older couples, many of whom are choosing to live with a new partner after a failed first or even second marriage, a contract serves another purpose. At later stages of life, the need to protect yourself and preserve assets for your kids is just good planning. Often those agreements are not so much about separation as they are about who will pay for nursing care and how long surviving partners can live in homes that may be part of the inheritance of their partner's kids. These are serious concerns that can affect one, two and sometimes three generations in a family or two.

It is much different for the couple who moves in together, starts a family and plans a future. Whether they will marry or not, they are making a commitment. The trust required to have children should create enough foundation to ensure that they will find common ground if they separate.

But maybe these couples feel pressures their parents didn't. They live a less certain world when it comes to employment. They are more likely to go from contract to contract than to have a lifetime career with a single employer. Many are paying off large student loans. They face a housing market where the ratio between prices and income is dramatically different than it was for the previous generation. For these and other reasons they may have delayed having kids. And maybe they are just more cynical.

For these younger couples who want to know what their personal futures will look like, a "no-nup" is a way of planning in these times of uncertainty. For the professionals who are helping them put their thoughts in writing, it is important to remember a few things:

1. They are just starting their co-venture. There is seldom a level playing field and one person may make concessions because the relationship is young and they are eager and in love.

2. Having children changes everything. Leaving parts of the agreement open to a second look once a routine is established has value.

3. If you are dealing with an older couple, the goal is the opposite. They need a comprehensive agreement that will operate like a well-oiled machine even if they can't.


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