Mediation, Arbitration, and Other Ways Unmarried Couples Resolve Disputes When Breaking Up

Learn about the different ways that you and your unmarried partner can deal with your affairs—including your finances and property—when you're splitting up.

By , Retired Judge

When married couples (or those in domestic partnerships or civil unions) are ending their relationship, state laws have provisions for dealing with issues like dividing their property, providing financial support for a former spouse, and the custody and support of their children. Except for issues involving children, those laws don't apply to unmarried couples. This article covers some of the ways unmarried couples can resolve their legal issues when they break up.

How Complicated Is it to Break Up When You're Unmarried?

The answer to that is less than satisfying: It depends. Being unmarried often allows for a cleaner break than if you were married and had to go through a legal divorce. But you may have somewhat complex legal issues to resolve if:

  • you've been together for a while
  • the two of you have acquired personal property (like bank accounts and investments) or real property (like a house), or
  • you have children together.

How Can Unmarried Couples Resolve Their Differences?

Agreeing on the Issues in Your 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. Your agreement may also address any future financial support that one of you will provide for the other (sometimes referred to as "palimony").

And if you have children, you'll need to decide child support, custody, and visitation issues. Both parents—whether or not they were ever married—have an ongoing obligation to support their children.

If you're at all concerned about the possible legal effects of a tentative agreement, it's a good idea for each of you to have separate lawyers review it before you sign.

Mediated Breakups

Mediation for unmarried couples works similarly to divorce mediation. You and your partner can meet with a trained, neutral mediator to discuss your differences and identify solutions. It's important to understand that it isn't the mediator's role to decide who gets what. Rather, a qualified mediator will keep you focused on the issues and guide you toward achieving a satisfactory compromise.

Mediation is fairly informal. It often takes place in the mediator's office or online, at convenient dates and times. 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.

Compared to court battles and arbitration, mediation is typically a cost-effective way of resolving your disputes. You and your partner can split the mediator's fee, and you don't need to hire lawyers. However, you may want to consult with appropriate professionals to get appraisals of your real estate and other property. (The two of you can also split those costs.)

Other Forms of Alternative Dispute Resolution

Although mediation is the most common form of alternative dispute resolution for couples who are splitting up, some couples might want to use arbitration instead. Unlike a mediator, an arbitrator will decide the outcome of your dispute. 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 the arbitrator's final determination to the courts. 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, with documents and testimony (from you or any witnesses you may have).

As with mediation, couples can share the arbitrator's fee. But arbitration is usually more expensive than mediation. On the upside, however, the case is over once arbitration is done. With mediation, if the process doesn't result in a settlement, you're basically back to square one and may end up in court.

In another form of ADR known as "collaborative law," both sides in a dispute attempt to negotiate a settlement with their specially-trained collaborative law attorneys. 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 disputes it applies to.

Many states restrict the use of collaborative law to family law, such as divorce or dissolution of domestic partnerships or civil unions. In that case, you might be able to use the collaborative process for standard family law issues such as custody and child support, but not for your property-related disputes. 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.

Going to Court

If you've tried but simply can't resolve your differences, you can go to court. Unless you're trying to resolve child-related issues, such as child custody or support, you probably won't be in family court. 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. Also, you'll 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 a hearing date.

Living Together Agreements

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. 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 one partner makes a claim based on something the other partner allegedly said during the relationship, the judge (or arbitrator) 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. You and your partner can create a living together agreement at or near the beginning of the relationship. These agreements can cover various issues, including:

  • equal or unequal ownership of a house
  • ownership of property, including the property either of you acquired before the relationship, inheritances and gifts received during the relationship, and property bought during the relationship
  • how you'll handle expenses, such as food, utilities, and housing
  • what will happen to your property if you split up or if one of you dies, and
  • whether either of you will provide financial support to the other in the event of a break up.

Be sure to put your everything in writing and sign the agreement. 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.

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