Despite your best intentions—just as is true for your married counterparts—statistics suggest that your relationship may not last forever. The anger and sense of loss that so often accompany a separation cannot be overcome by any law or counsel; emotional crises are best addressed through the help of friends, family, and therapists. On the legal front, however, breaking up can be a lot easier for unmarried couples than going through a divorce. As long as you and your ex can agree on how to divide up your assets, there is no need to involve lawyers or the court system. Even if children are involved, in most states you have the opportunity to separate in private, according to whatever arrangements the two of you agree on. But, if you and your ex are unable to resolve your disputes in an amicable fashion, you may end up in court. This can often be very difficult, because the codified divorce procedures that apply to married couples do not apply to unmarried folks.
Legal Rules that Govern Property Rights of Unmarried Couples
While the specific rules differ slightly from state to state, the basic legal principles that regulate the property rights of unmarried couples can be summed up as follows:
Laws governing married couples who divorce (generally labeled marital or family law) do not usually apply to unmarried couples who separate.
Exceptions include unmarried couples living in a state that recognizes common law marriage
who qualify under their state rules, or those who qualify as domestic partners
in a few states.
Each unmarried partner is presumed to own his or her own property and debts unless you’ve deliberately combined your assets--for example, by opening a joint account or putting both names on a deed to your home. This differs from married couples, for whom any debt or asset acquired by either spouse during marriage will usually be considered jointly owned in the event of a dissolution—unless the parties signed a prenuptial agreement modifying these rules.
The legal presumption of independent property ownership of unmarried partners can generally be overcome by a written agreement to share assets. In many states, a proven oral or implied-from-the-circumstances agreement to share assets can also be enforced by the courts (although this can be extremely difficult to do if there is no written contract).
Where it’s established that an unmarried couple’s assets are jointly owned (for example, when both names are on a deed), the assets are considered to be owned in equal 50-50 shares. The exception would be if there is proof of a different agreement or, in some instances, where one partner clearly made a greater contribution and can prove it.
The property aspects of your dispute will generally be handled by the ordinary business section of your state’s civil courts, just as though you were going through a business dissolution. This means in most places you aren’t entitled to any special mediation services or expedited hearings, which are common in divorce court, unless you have child custody or child support conflicts (these will most often be handled by the family law division of your local court).
In most states, neither unmarried partner is entitled to receive any alimony-type support after a breakup unless there is proof of a clear agreement to provide post-separation support. In some states this must be a written agreement. The fact that one of you supported the other one during your relationship or that you signed wills providing for each other upon death generally is irrelevant to a claim for support unless you can prove that a contract to provide support after separation existed. For married couples, on the other hand, if either party has been financially dependent on the other, or if one person earns significantly more than the other, the judge can order the higher earner to pay alimony (spousal support or maintenance).
If you are jointly raising children and you are both legal parents, you normally have the opportunity to work out a joint agreement without court intervention. But if you end up in court, the issues of custody, visitation, and child support will be handled just as they are for married couples. If only one of you is the legal parent (because the other parent did not adopt the child), in most states the nonlegal parent will have no right to future custody or visitation of the child, and will have no duty to support the child.
Why Living Together Agreements Are So Important If You Separate
We urge unmarried couples to prepare written living together agreements covering your property, your home, and other important issues. Doing this while your relationship is going well will head off lots of problems should you ever break up, Properly written living together agreements are legally enforceable in court. Most important, a written living together agreement can minimize the potential of even going to court.
Without a written agreement, separation will be more difficult, particularly if you have lived together a long time, or a lot of money or property is involved and your split is not amicable. In this case, you’ll definitely want to consult an attorney or financial adviser.