The answer to that is less than satisfying: it depends. Generally, if you’ve been together for a relatively short time, or you and your significant other haven’t accumulated a lot of property, being unmarried often allows for a cleaner break than if you were married. You don't have to go through the formality of a divorce and there’s usually not a lot to argue about—unless, perhaps, if you have children.
If, however, you’ve been together for a while, and you’ve acquired personal property (like bank accounts and investments) or real property (like a house), you may have somewhat complex legal issues to resolve.
Although state divorce laws have provisions for dealing with issues such as financial support and dividing property, these laws generally apply to married couples or those in a state-sanctioned domestic partnership or civil union. This article will cover some of the ways unmarried couples can resolve their legal issues in the event they break up.
There’s nothing to prevent an unmarried couple from settling their differences on their own. If the breakup is relatively amicable, you can make a list of the assets you need to divide and mutually agree to an arrangement. If you're able to do this, you should put your terms into a written property settlement agreement. You may also address financial support in your agreement as well.
If you have children, you will also need to decide child support, custody, and visitation issues. Even though you were never married. Both parents have an ongoing obligation to support their children.
If you need information on the possible legal effects of a tentative resolution, you can consult a lawyer for guidance.
Alternative Dispute Resolution (ADR) refers to certain methods of settling conflicts, with the aid of a third party. For unmarried couples, the two primary ADR methods are mediation and arbitration.
Of the two, mediation is usually the more cost-effective. You can typically conduct a successful mediation with just the couple and the mediator, who is usually a family law attorney with specialized mediation training.
However, the couple may want to consult with appropriate professionals to get real estate and personal property appraisals in advance, if needed. It’s important to understand that it isn't the mediator’s role to decide who gets what. Rather, a qualified mediator will keep the couple focused on their issues and guide them toward achieving a satisfactory compromise.
Mediation is fairly informal, and often takes place in the mediator’s office, at dates and times convenient to all involved. If you want to have someone accompany you, whether a lawyer or a friend, you should request it up-front, so everyone knows what to expect.
Arbitration is similar to mediation in terms of the setting and scheduling of sessions, but there are differences, the most glaring of which is that with arbitration, the arbitrator decides the outcome. In effect, the arbitrator takes the place of a judge. So think of an arbitration as a mini trial. Because of that, couples frequently have lawyers representing them in arbitration.
Most arbitrations require that you agree not to appeal (to the courts) the arbitrator’s final determination—this is sometimes referred to as "binding arbitration." During the arbitration proceedings, you and your significant other set out your positions by presenting relevant evidence, through documentation and testimony (from you or any witnesses you may have).
Because arbitration is far more complicated than mediation, it tends to be more expensive. On the upside, however, once an arbitration is done, the case is over. With mediation, if the process doesn’t result in a settlement, you’re basically back to square one and may end up in a divorce trial.
Note that it’s common for the couple to share the mediator’s or arbitrator’s fee, as well as any costs, such as for appraisals.
There’s another form of ADR known as “collaborative law.” This method requires both parties to have a lawyer. But there’s no mediator or arbitrator. Rather, the couple and their specially-trained collaborative law attorneys sit down together as often as needed in an attempt to negotiate a settlement. States that have adopted the use of collaborative law have strict rules governing the process.
To use collaborative law, you first have to find out whether your state permits it. Then you’ll need to determine what kind of matters it applies to. Many states restrict its use to family law, such as divorce or dissolution of domestic partnerships or civil unions. In that case, as an unmarried couple, you may be out of luck.
If you have children, you might be able to use the collaborative process for standard family law issues such as custody and child support. But you'll need to check your state's laws on this—if your state does allow it outside of the standard family law context, it might be something for you to consider.
If you've tried but simply can't resolve your differences, you can go to court. You probably won’t be in family court, unless you're trying to resolve child-related issues, such as child custody or support. Rather, you’re likely to be in civil court, and a judge will hear your case much the same as if you were arguing over a failed business arrangement.
If you end up in trial, you’ll have to pay attorney’s fees and court costs and will be subject to the court’s timetable. The inability to control scheduling can be particularly painful, especially if your judge's docket is full and you end up waiting several months for the court to become available.
In most states, when unmarried partners break up, they generally retain ownership of property held in their own name. Also, there’s normally no statute governing post-breakup financial support (which is similar to alimony). So if either partner is claiming an interest in property that's in the other's name, or is seeking support, it can create a complex situation.
For example, if claims are based on alleged oral representations made while the relationship was intact, then in an arbitration or court trial, the arbitrator or judge will have to determine who promised what to whom. It's generally difficult to prove these types of oral agreements.
There are ways around this scenario. If, at the beginning of the relationship, you and your partner agree on how you’ll handle these issues, you can create a living together agreement.
There are numerous issues that living together agreements can cover, including:
To prevent a dispute as to exactly what was agreed to, be sure to put your terms in writing. To create a living together contract, you can use Nolo's book, Living Together: A Legal Guide for Unmarried Couples.
If you have specific questions or want a professional to review your proposed contract, you should speak to an experienced family law attorney.