Some unmarried couples who break up manage to do all the heavy lifting of separating their lives themselves with no help from outsiders, while others may need to use one or two formal dispute resolution methods at different stages of their separation. The more jointly owned property you have, the longer it can take to pull everything apart—particularly if you’re starting from scratch and you have no written agreement spelling out ownership issues.
If either you or your partner has trouble staying focused on the practical issues involved in your breakup or you can’t avoid gut-wrenching psychodramas, you will probably need to ask a neutral third party to moderate and structure your conversation. This can be done through mediation or arbitration (commonly known as alternative dispute resolution or ADR) or, (as a last resort), court proceedings. The major factors to consider in choosing the right approach are: cost, time (avoiding long delays), how much money or property is at stake, and the need for special expertise (for example, if you’re dividing ownership of a good-sized business).
Working with a neutral mediator or arbitrator are among the best ways unmarried couples resolve their disputes when they break up.
Mediation is a nonadversarial process where a neutral person (a mediator) helps you settle your differences. Mediation is often used to help separating couples work out problems concerning division of property and issues involving children.
With mediation, the two of you get together to talk face to face about your disagreements, with a neutral mediator working to help you find realistic solutions. No one has the power to impose a solution—rather, you must work out your own agreement voluntarily. Unlike a judge, the mediator’s role is to help you and your partner find common ground. When this happens, both parties usually feel like their dispute was resolved fairly, and a good foundation is laid for future cooperation. This approach is especially important if you have children. In addition, mediation often costs less than either an arbitration or court proceeding and, unlike going to court, is conducted in private.
Each of you can come into the mediation solo, or you can each bring an advocate along—either a friend or an attorney, depending on how complex your disagreements are. You also may want to bring along an advocate if your ex has better negotiation skills or more financial savvy.
Mediation—which allows disputants to express personal and emotional issues, but eventually focus on practical ones—can produce great results, and it almost always moves more quickly than a protracted exchange of written communications. The key is to have a good mediator and to allow enough time to air your conflicts and find solutions. In this context, a series of shorter mediation sessions works best for some people, while half-day or even daylong sessions may be very useful if complicated property ownership issues must be resolved.
Make sure to select a mediator with the background and experience necessary to help you settle the issues in your case. The needs of a couple trying to resolve a dispute about real estate will differ from those of a couple fighting over the car and a few household possessions or from a couple grappling with custody issues. To find a good mediator, get references from people you trust—friends, relatives, colleagues, or a trusted attorney. Depending on your situation, you may want to contact a community agency that offers mediation, usually by trained volunteers. Private practice mediators are another option.
Remember to document any settlement you reach in a clear written agreement. Once you do, this contract is enforceable in court just like any other binding agreement.
More information on mediation is available in the Mediation, Arbitration, and Collaborative Law section of this website. An excellent source of more thorough information is Nolo’s Mediate, Don’t Litigate, by Peter Lovenheim and Lisa Guerin. Also, Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine Stoner provides advice on mediation that applies to unmarried couples as well as a married couple going through a divorce. While the legal aspects of your breakup will not be the same as those faced by married people, many of the practical and financial issues are the same. Finally, if you have children, be sure to see the Nolo book Building a Parenting Agreement That Works: How to Put Your Kids First When Your Marriage Doesn’t Last, by Mimi Lyster. This includes valuable advice on how mediation can help resolve custody and visitation disputes.
If mediation fails to resolve a dispute, arbitration often is the next best choice. Arbitration is best understood as a kind of private trial, but one that is quicker, less formal, and almost always cheaper than courtroom litigation. You sign an agreement to submit your dispute to a neutral decision maker (called an “arbitrator”), and agree to abide by the arbitrator’s decision. Normally, arbitration awards are binding and not appealable. In order to make arbitration effective, you will need to reach agreement on the following before the arbitration hearing:
After you have decided what procedures the two of you are going to use to resolve your conflicts, you should prepare an agreement setting out how you want to move forward and what disputes you will be resolving. A sample Agreement to Mediate and Arbitrate form is shown here. You can tailor it to your own situation.
If you can’t even agree about setting up a mediation or arbitration procedure to settle your dispute or if one party is particularly aggressive, the courts may be your only resort. Litigation (an adversarial legal proceeding) is likely to be expensive, ugly, time-consuming, and very depressing, so only take this route if all else fails. But when nothing else works and there is a lot of money or property in dispute, going to court at least provides a way to resolve your conflicts.
Here’s a brief rundown of the types of claims commonly raised in court in an unmarried dissolution:
• Breach of contract. Was the contract (agreement) for sharing funds, debts, or assets written, oral, or implied? Which partner breached the contract?
• Partition of real and personal property. Who owns what real estate and personal property? How is it to be divided up or sold, and who is to receive what share of the proceeds?
• Post-separation support. Does either person claim that an oral or written agreement states that the other owes him or her post-separation financial support? If so, how much, for how long, and what is the proof that an agreement for the payment of support exists?
• Personal injury and financial compensation. Does either partner have valid claims for personal injuries or financial harm, such as the destruction of a valuable possession, the wrongful withdrawal of money from a bank account, or an injury during a domestic violence episode?
If, despite your best efforts at working out a reasonable compromise, you end up in court, here are a few basic guidelines:
• Find a good attorney experienced in unmarried dissolutions to represent you. See Nolo’s Lawyer Directory for names of local family law attorneys.
• Try to evaluate how your ex is going to respond to the prospect of litigation. With some people the mere mention of going to court will bring them to the bargaining table. But with others it is likely to greatly increase tensions.
• Learn how the litigation process is likely to work to resolve your particular problems. If you are fighting over your house, find out whether there is a local protocol for appraising and dividing up real estate, and how it may affect the outcome. If your dispute concerns joint bank accounts or claims for post-separation support, research how the local courts deal with these issues (in many states, by law, alimony-type support is not ever awarded to unmarried partners). Try to evaluate how the litigation process will actually proceed for your particular case: Do you need to file any papers immediately? (You might, especially if your name isn’t on the title to a property you claim is part yours.) How much pretrial paperwork will there be; how will the trial be handled; will there be a jury? The more you know ahead of time, the better your decision making will be.
• Make it clear to your lawyer—and frequently remind yourself—that while you are initiating litigation out of frustration or desperation, you always remain open to compromise. Even after court papers are filed or a trial begins, it is not too late to put the litigation on hold and schedule a mediation session.