If you want to ensure that critical decisions stay in the hands of your partner or friend, you'll need to prepare a few simple documents: health care directives and durable powers of attorney for finances.
Every state has laws authorizing individuals to create simple documents setting out their wishes about the type of medical treatment they do (or do not) want to receive if they are unable to communicate their preferences. These documents may also name someone to make medical decisions on the signer’s behalf. These documents are particularly important for unmarried partners and anyone who's not in a relationship. If you don’t take the time to prepare them and you become incapacitated, doctors will turn to a family member designated by state law to make medical decisions for you. Most states list spouses, adult children, and parents as top-priority decision makers, making no mention of unmarried partners.
There are two documents that permit you to set out your health care wishes, both grouped under the broad label health care directives or advance directives.
Note that some states combine these two documents into one, which is often called an "advance health care directive," or simply "advance directive."
With a durable power of attorney for finances, you may name someone you trust (called your “attorney-in-fact” or “agent”) to handle your finances if you become unable to take care of yourself. Every state recognizes this type of document.
As with documents directing medical care, you should seriously consider making a durable financial power of attorney if you want your partner or friend to manage your money when you aren't able to do so. If you don’t prepare the document and you later become incapacitated, your partner, relative, or friend will have to ask a court for authority over your financial affairs. These conservatorship proceedings can be time-consuming and expensive. And they can be disastrous for unmarried couples if a judge appoints another family member or even a stranger to take over, especially if your finances have been intertwined with those of your partner for a long time.
You can make your financial power of attorney effective immediately or you can specify that it should go into effect only if you become incapacitated (what's called a “springing” power of attorney). Some people are more comfortable making a springing document. But for couples in long-term, trusting relationships, making the document effective immediately can have advantages. That way, your partner can handle financial transactions for you at any time, even when you're not incapacitated. This can be useful if you are out of town, under the weather, or temporarily unavailable for any other reason.
When you make a durable power of attorney for finances, you can give your partner (or other attorney-in-fact) as much or as little control over your finances as you wish. The powers you grant may include:
As with health care directives, you can make a durable power of attorney for finances if you're at least 18 years old and of sound mind. And you can change or cancel your document at any time—again, as long as you are of sound mind.
There are a number of ways to find the proper health care and power of attorney forms for your state. You don’t usually need to consult a lawyer to obtain or prepare them. Here are some good sources for forms and instructions:
Once you've completed the documents for health care and financial power of attorney, you'll need to sign and finalize them. The requirements for this vary from state to state. For the power of attorney, you'll usually need to sign it in the presence of a notary. Some states also require witnesses. When that's the case, the laws might set limits on who may act as a witness.
]]>When an unmarried couple cohabitates, both partners will need to file an individual tax return at the end of the year. Unmarried couples may not file a joint tax return.
Unmarried partners may be able to use the “head of household” filing status if they support a child dependent. If your child lives with you and your partner, one of you may file as head of household to claim the child tax credit, but only if you’ve provided at least 50% of the financial support for the child.
Additionally, you can only claim the credit if your child lived with you for the last six months of the tax year. Married couples filing a joint tax return don’t need to make this consideration because they will add the child to the complete tax form and the math will work itself out. That said, in some cases, married spouses with a higher income may not qualify for the child tax credit.
Qualified individuals can claim their partner as a dependent if the partner:
Many unmarried couples own a home together, which can sometimes create complications at tax time. If you live with your partner, and the mortgage is in just one partner’s name, only the listed partner can claim a deduction for mortgage payments and interest, even if the unnamed partner contributed to or covered the payments.
In one case, an unmarried couple lived in the boyfriend’s home. The mortgage was in the boyfriend’s name, but both contributed to the household bills, including the mortgage payment. Over time, the couple had a child, and the boyfriend quit his job and became a stay-at-home parent. For four years, the girlfriend paid the mortgage each month. Eventually, the couple added the girlfriend’s name to the deed and mortgage.
When the girlfriend claimed the prior four years of mortgage payments and interest on her taxes, the Internal Revenue Service (IRS) rejected her request, stating that she could only receive a credit for the money she paid after she was legally responsible for the mortgage. In this case, the woman was out over $10,000 because she was unmarried and paying someone else’s bill. (Wheeler v. Commissioner, T.C. Summary Opinion 2011-83, July 6, 2011.)
Anyone can leave up to $13.61 million (in 2024) at death without incurring federal gift or estate tax. Married couples can leave even more. Married people can leave any amount of property to their spouse without tax penalty. Further, married couples can share their $13.61 individual exemptions so that if Spouse A dies without using any (or all) of his individual estate tax exemption, Spouse B can choose to use his exemption and leave up to $27.22 million without owing estate tax.
Of course, most people -- married or not -- do not need to worry about federal estate taxes at all because they don't have $13 million. State estate taxes are a somewhat different matter because, in the handful of states that levy estate taxes, the exemptions are lower than the federal exemption. You can learn more about state and federal estate and gift taxes in the Estate and Inheritance Taxes section of Nolo.com.
]]>Yes. All children qualify for government benefits that are related to the child’s biological parents, which may include Social Security Survivor benefits. Survivorship benefits are available to children of deceased parents who qualify for Social Security credits through their work history, but die before collecting.
It’s critical for you to ensure that your child’s birth records correctly list both biological parents and that you resolve any paternity issues as soon as possible after the child is born.
If you’ve taken the above steps and your child’s other legal parent dies, the government will pay the benefits to your child. However, if you fail to establish paternity and try to collect the benefit, the government may reject your claim.
^Back to topWith a few exceptions, most states allow parents to choose their child’s name, without restriction. Unmarried partners can decide to choose one parent's last name, hyphenate both last names, or create a new last name that combines both parents' names. Or, you might want a name that doesn’t involve either parent’s last name. If you select a name and decide to change it later, you may contact your state’s Department of Vital Statistics for more information.
^Back to topYou’ll need to check your state laws to verify if you and your unmarried partner can adopt children together. Most states do allow couples to adopt, regardless of marital status, but the process may be more daunting than a typical adoption if you're unmarried. Once your adoption is final, both parents will be legal parents and share equal rights and responsibilities for the child.
The biggest unknown for unmarried couples who wish to adopt comes when you utilize the services of a private or public adoption agency. Historically, adoption agencies have been very selective and disfavored unmarried couples. If you’re hoping to be successful using an agency, you’ll need to meet all your state’s adoption requirements, and you should be prepared to explain why you’re not married and demonstrate that you can provide a stable home for any adopted children.
^Back to topMany states allow couples to request a “second-parent adoption,” which is where one partner legally adopts the other’s biological child. If the couple is legally married, the court refers to the adoption process as stepparent adoption. While stepparent adoption still requires the couple to go through the adoption process, it’s usually less challenging because the court recognizes the legal relationship between the spouses.
Before you can be successful with a stepparent or second-parent adoption, the court must ensure that the following is true:
State law favors biological parents and their parental rights. If the noncustodial parent is involved in the child’s life and doesn’t consent to the adoption, it’s unlikely that the court will approve the adoption.
^Back to topNo. Like divorced parents, the law only allows one partner to claim the child per tax year. Most divorce or custody orders address the issue of tax exemptions, and usually, the custodial parent will take the tax credit.
Unmarried partners should consult with a tax attorney to determine who should take the credit. Typically, it will be more financially advantageous for the parent who earns more income to claim the child. Of course, unless there’s a court order that states otherwise, parents can agree to any arrangement they feel is best for their family.
^Back to topIf the biological parents are no longer together, but share joint legal custody, then the legal parent has priority over a new spouse or partner to make medical decisions for your child. If you have a good relationship with the other parent, it’s possible that the three of you can work together to ensure you meet your child's needs, but if you disagree, the court favors the opinion of the biological parent over an unrelated parental figure.
Schools generally require that legal parents or guardians must sign permission slips for school events—unrelated individuals usually can't sign off on field trips or other educational activities that require parental consent. However, most schools allow parents to add unrelated family members to the children’s emergency card, which may enable a non parent to pick up the children from school and call to obtain information for the child.
^Back to topBreakups are tough, especially when children are involved. If both parents are legal parents—through birth, paternity, and/or adoption—then both will continue to enjoy equal rights and responsibilities for the children. Typically, the couple can work out a custody, visitation, and child support arrangement without taking legal action. However, if either parent disagrees with the other, the parents will need to file a custody motion with the court.
If one partner is not a legal parent of the child, that partner may not have any parental rights. Ideally, if an unmarried partner wants to remain in the child’s life, both parties will create an agreement that outlines parenting time and other rights and responsibilities for the unrelated parent. However, if the child’s biological parent decides not to honor the agreement, you may need to seek advice from an experienced attorney to determine if there is any other recourse.
^Back to topThe most effective way to ensure that both parents are recognized as legal parents is to add each parent to the child’s birth records. You can add both parent’s names to the birth certificate at the time of birth or by contacting your local Department of Vital Statistics.
It’s important to understand that the law only permits the legal parents to be on the birth certificate. Most states require unmarried fathers to confirm paternity by signing an affidavit or acknowledgment of paternity. Typically, once you sign this document, the court will use it as a verification of paternity, so don’t sign it if you’re unsure that you’re the biological father.
If you’re in a same-sex relationship and unmarried, the requirements for becoming a legal parent may be a little more complicated. If you’re unsure of what steps to take, you can find more information in Nolo’s book: A Legal Guide for Lesbian and Gay Couples.
^Back to topEstablishing who the legal parents are (sometimes called “parentage”) protects the mother, the baby, and especially the father, by greatly reducing the possibility that a judge will deny the father custody or visitation of his child, or other rights to which fathers are legally entitled. It also helps ensure that the child will be eligible to receive benefits through the father, including health, survivors’, disability, and life insurance benefits.
Keep in mind that parents are legally responsible for their children and their support, regardless of whether the parents are married to each other. And even if the father didn’t want the child, or split from his partner before the baby was born, he remains responsible for the child’s support. Establishing paternity is crucial in securing financial support from an unwilling father.
The best way to establish the father’s paternity is by naming him on the baby’s birth certificate. (However, as discussed below, some states require unmarried parents to sign an acknowledgment of paternity first.)
Part of the process for getting a birth certificate usually is to give the baby a name. Although the last name of the baby doesn’t have a legal bearing on paternity or parentage, when parents are unmarried or have different last names, questions can arise about which last name the baby should have.
In most states, you may give your child any first, middle, and last name you like. You don’t even have to give the baby the last name of either parent if you don’t want to, and the child doesn’t have to have the father’s last name to be considered “legitimate.” (Learn more about the legitimacy of children born to unmarried parents.)
The procedure for naming a baby is simple. A representative of the local health department or similar agency, or a hospital social worker, meets with the new mother in the hospital immediately after the birth. The representative typically asks the mother for the child’s name and requests information about the father, such as his name and occupation. The mother doesn’t have to name the child at this time, though she will probably be urged to do so. The information the mother gives is typed on a form that she signs. The state then issues a birth certificate, which usually doesn’t reveal whether the parents are married.
If the baby isn’t born in a medical facility, the mother or the physician, midwife, or other person assisting in the delivery must notify health officials of the birth. Again, there’s no legal requirement that the baby be named at this time, but it’s common to do so.
When a birth certificate is issued without a baby’s name or the father’s identity, it’s still possible to update the birth certificate later to include that information. Each state’s Department of Health or Bureau of Vital Statistics has procedures for adding the father’s name to the child’s birth certificate.
If you’re going to be adding the father’s name to a birth certificate, most states will require an unmarried father to sign an acknowledgment of paternity. In some states, including California, the only way that an unmarried father’s name can be placed on a child’s birth certificate is if the father signs a voluntary declaration of paternity.
Under U.S. Department of Health and Human Services regulations, all states must offer unwed parents an opportunity to establish paternity by voluntarily signing an acknowledgment of paternity, either at the hospital or at a later time. Partly because of political pressure to reduce the number of mothers on welfare (by ensuring that there is someone else with an obligation to support the child), hospital personnel in many states will make every effort to get the father to sign the acknowledgment before the mother and baby are discharged.
If the father isn’t present at the hospital following the birth, the mother won’t be able to list him as the father on the birth certificate in his absence. Instead, the father and mother will have to sign a voluntary declaration of paternity (or parentage) at a later time, and have the father’s name added to the birth certificate.
A voluntary declaration of paternity signed by both parents has the same legal effect as a court order, so once it’s signed and submitted to the appropriate agency, the father’s paternal rights are firmly established.
If you live in a state that requires a voluntary declaration of paternity before placing an unmarried father’s name on a birth certificate, and you and your partner split up before the baby is born, you might have to bring a legal action to establish paternity if your ex-partner won’t sign the voluntary declaration.
If both you and your partner are present for the birth, and it’s clear that your partner is the child’s father, it’s unlikely that you'll be able to leave the hospital without naming the father on the birth certificate or signing a voluntary declaration of paternity. However, if for some reason you don’t name the father on the birth certificate or sign a voluntary acknowledgment of paternity at the hospital, then it’s essential that you prepare and sign either an official state paternity statement or informal paternity statement.
As discussed above, all states have official forms on which a man can voluntarily acknowledge his paternity of a child. In some states, there’s a time limit for signing these forms, but in others there’s no time limit. In many states, the father’s signature on the forms acts as a substitute for a court order, officially establishing his parental relationship with the child. A homemade form won’t accomplish the same thing, so before you create one, find out whether you can still sign a voluntary declaration of paternity with the state.
All states have official forms on which a man can voluntarily acknowledge his paternity of a child. In some states, there is a time limit for signing these forms, but in others there is no time limit. In many states, the father’s signature on the forms acts as a substitute for a court order, officially establishing his parental relationship with the child.
A homemade form will not accomplish the same thing, so before you create one, find out whether the window of opportunity for signing a voluntary declaration of paternity is still open. For information on your state paternity rules and forms, contact your state department of health (find yours on the website of the National Center for Health Statistics (NCHS).
Assuming you haven’t signed a paternity statement in the hospital, or used your state’s voluntary declaration of paternity, you can prepare an informal paternity statement on your own—although it’s usually best to use the official state form whenever you can.
Draft a document listing the father’s name, the mother’s name, and the child’s name, as well as the birth date, and place of birth in the appropriate sections. It’s a good idea to look at your state’s official form to see what language it uses to acknowledge paternity. Alternatively, contact a local attorney to draft an effective statement.
Prepare two copies of the statement and have your signatures notarized on both copies. Notarization isn’t required, but it’s an excellent idea. In the event the father dies, the mother might have to present the paternity statement to various public agencies—and possibly life insurers and other private companies. Notarization proves that the father’s signature wasn’t forged after the father’s death.
The mother and father should each keep a copy of the notarized paternity statement. Some states have set up procedures to file paternity statements with a state agency. For information on doing this, contact your state’s Department of Health or Bureau of Vital Statistics.
Legal disputes over paternity commonly concern a father's responsibility for paying child support. A father’s refusal to sign a paternity statement won’t get him off the hook for paying child support. If a father doesn’t voluntarily sign the statement, the state will go to court to establish that he is the father and collect child support.
Other paternity-related legal disputes concern the father's parental rights. In most cases, a father establishes his parental rights by signing an acknowledgment of paternity or a paternity statement at some point after the child’s birth—as long as no dispute over custody or adoption arises in the interim. However, the U.S. Supreme Court has held that if a father waits until a custody dispute arises, it might be too late to establish full parental rights—unless he's had an ongoing relationship with the child. (Quilloin v. Walcott, 434 U.S. 246 (1978).) For example, the Court denied a father’s right to block a child’s adoption—thereby cutting off his parental rights—in a situation where he had no real relationship with his children and didn’t try to legitimate them until the adoption proceeding began. (Lehr v. Robertson, 463 U.S. 248 (1983).)
In some states, only a father who has established paternity by coming forward promptly and demonstrating a full commitment to his parental responsibilities must be notified of adoption proceedings. (In re Kelsey S., 823 P.2d 1216 (Cal. 1992).) And if he does learn of the proceedings, he might not have legal standing to object.
In many other states, there is a trend towards giving unmarried fathers more rights, especially when the father has promptly and consistently attempted to form a paternal relationship with a young child, but was prevented from doing so by the mother’s actions. For example, when the mother failed to tell the father of the birth of their child, if the father later discovers the birth and promptly makes a good faith effort to assume responsibility for the child, the courts generally will protect his rights, as in the Baby Jessica case. (In re Clausen, 502 N.W. 2d 649 (Mich. 1993).)
If you are in a paternity dispute with the unmarried parent of your child, it’s usually a good idea to consult an experienced family law attorney.
Although officially acknowledging paternity is a very good idea if you are the father of the child, if you’re not the father, or if you’re not sure, don’t sign a paternity statement. After you sign a paternity statement, you’ll be liable for child support—and maybe even have to reimburse the state for welfare payments made to the mother—until you can prove that you aren’t actually the child’s father.
In states where the mother can state the name of the father even when he’s not present at the birth, some women are tempted to write down a name other than the actual father’s on the birth information form. This is most common when the mother no longer sees the biological father and is involved with someone whom she would prefer to help raise the child or who is financially better able to do so.
Identifying a man as the baby’s father when that man is not actually the father is a terrible idea. An unmarried couple’s current relationship might not last forever, and complicated legal questions of paternity and support can grow from listing the wrong person as the father of a child. In a well-known case (In re Clausen, 502 N.W.2d 649 (Mich. 1993)), the mother of Baby Jessica lied on her baby’s birth certificate, saying that the father was her new boyfriend. She didn’t tell her ex-boyfriend that he had a biological child. When the mother and her new boyfriend gave the baby up for adoption, the biological father found out and wanted to claim Baby Jessica. A long legal battle ensued between the new adoptive parents and the biological parents, with Baby Jessica caught in the middle. (She was eventually returned to her birth parents.) To avoid legal and emotional disaster, it’s always best to accurately state who the biological father is.
For same-sex couples, establishing parentage can be more difficult than it is for opposite-sex couples—mostly because there is a third-party donor involved. In most states, the law presumes that the person who carries the child is the mother, and the biological sperm donor is the father.
In order for both intended parents to preserve their parental rights, it’s important for the couple to closely follow their state’s laws on establishing parentage (depending on your state, it might still be referred to as “paternity”).
Many states have what are called “Paternity Acts,” which lay out the steps that a parent must take to claim paternity (or parentage). It’s key to follow the steps laid out in these laws. You’ll also want to find out if your state has an “artificial insemination act” or similarly named donor act. Beware of using a standard, non-state-specific sperm or egg donor agreement that you might find on the internet—these often will not meet a state’s strict laws on how to determine whether a donor might have parental rights.
In most states, your best bet is for the intended parent to at least sign a voluntary acknowledgment of paternity (or parentage), and it’s often a good idea for whichever parent the law doesn’t legally recognize to formally adopt the child. Some states offer expedited, simplified procedures for same-sex adoptions (often called “second-parent” or “co-parent” adoption).
Every state’s law is different, and some states are more willing than others to recognize same-sex parents’ parental rights. Because the laws on the subject change frequently, if you’re trying to establish parentage in a same-sex couple (married or not), it’s a very good idea to consult with a local family law attorney. Many advocacy groups, such as the National Center for Lesbian Rights, also provide information and advice for same-sex couples hoping to establish parentage.
]]>One way to prevent those problems is to create a cohabitation property agreement. But before you do that, you should understand the basic legal requirements for these agreements, who needs them, and what they should cover.
A cohabitation agreement is type of contract between two people who are living together as unmarried partners. Like any other contract, it’s basically an agreement to do (or not do) certain things in return for some benefit—what’s known in legalese as “consideration.” A valid contract must include consideration. Otherwise, it’s essentially a promise to provide a gift—and, as such, courts won’t enforce it.
Cohabitation contracts are a way for unmarried couples to spell how they’ve agreed to handle their property and finances during their relationship and in the event that they part ways.
As long as you have a cohabitation agreement that meets the legal requirements in your state (more on that below), you may ask the court to enforce the contract if your ex refuses to do what they’ve agreed to do.
Until the 1970s, courts generally refused to enforce contracts that were based on relationships between unmarried couples, because they assumed that the consideration for the contract—such as the benefit that a higher-earning partner received for sharing property with the lower-earning partner—was sex. That meant courts saw these contracts as akin to paying for sex—which is illegal.
That started to change with the famous Marvin case, in which the California Supreme Court held that unmarried couples may enter into enforceable contracts with each other about their earnings and property rights, as long as “sexual services” aren’t the consideration for those agreements. (Marvin v. Marvin, 557 P.2d 106 (Cal. 1976). Although the Marvin case applied only in California, courts in almost all other states eventually followed this basic principle—albeit with some variations on the specific requirements for a valid, enforceable cohabitation agreement.
The legal rules for cohabitation agreements have mostly developed through court decisions rather than laws. Although almost all states recognize these agreements to some degree, courts in different states have taken varying approaches to what are popularly known as “palimony” agreements. For example:
In a few states, the courts hold fast to the older view that cohabitation agreements aren’t legal. For instance:
It remains to be seen whether courts in these states will change their views on this issue. In the meantime, you should speak with a local lawyer if you live in Illinois, Georgia, or Louisiana, and you’re hoping to create a cohabitation agreement that would hold up in court.
Some unmarried couples who move in together keep their finances separate, splitting rent and other household bills as if they were simply roommates. But many other couples—especially those who live together for a considerable amount of time—blend their finances at least to some degree.
Obviously, you don't need a cohabitation contract if you’re in a brief relationship. But very few couples in the early stages of a relationship know how long it will last. And couples who started out by keeping their money separate often begin merging their finances gradually—without ever talking about what that means for their relationship and futures. That’s almost always a mistake that will come back to haunt them—particularly if they split up.
If you break up but have a clear, written cohabitation agreement, you’re more likely to avoid an expensive court fight over your property, debts, and any expectations for future payments between you. But cohabitation agreements aren’t only about what happens when the relationship ends. They can also help couples be clear and up-front about their needs and expectations, which can minimize the chance of misunderstandings down the road.
Cohabitation agreements are especially important if you and your partner:
It is true that in some states and some circumstances, a judge might find that an unmarried couple has an enforceable a cohabitation contract even though the partners don’t have a written agreement. For example:
As a practical matter, however, the lack of a written cohabitation agreement can lead to a host of legal problems. If you and your ex don’t agree about the existence or specifics of an oral (or implied) agreement, it will be very difficult—and expensive—to prove your claims in court. Whether the two of you want to keep your property separate or share some (or all) of it, the only way to protect yourself and honor both of your intentions is to have a written contract that both of you have signed.
Putting your contract in writing needn't be time-consuming or dreary. Nor does it demonstrate a lack of trust in each other’s word. To the contrary, it's a healthy dose of realism, recognizing that memories fade and feelings change over time. Approach the task in the spirit of clarifying your understanding and preserving the shared memory of two fair-minded people.
If your partner isn't willing to sign an agreement, don't rely on any oral promises. It’s best to consider yourself to be without a contract at all.
A cohabitation contract can be comprehensive, covering every aspect of your relationship, or it can be specific, covering only one transaction (such as buying a house). The agreement should spell out exactly what you both want, and how much you want to share property and finances, if at all. Here are some issues that couples typically include in a cohabitation property agreement:
(Learn more about what to include in a cohabitation contract, along with tips for preparing it and what to do when it’s done.)
Especially in the first year or two after they get together, many unmarried couples keep all or most of their money and property separate—with the occasional exception of a joint account to pay household bills or an agreement to purchase one or more items jointly.
You may think that keeping your property ownership separate is so simple that you don't need a written agreement. Think again. As we’ve seen, some courts may recognize oral or implied cohabitation agreements. So the lack of a written contract might be an invitation for your erstwhile partner to later claim that you had a spoken or unspoken agreement to share your property.
Here are a few things you might include in an agreement to keep your property separate:
Attach a list of major items you own to the agreement (at least list all items worth $100 or more). Be sure to update your list from time to time—once a year is a good period.
Either when you move in together or at some later point in your relationship, you may decide to share your income and property. Typically, this agreement may:
Attach a list of all the property each of you owned separately before the agreement, as well as a list of your jointly owned property (which you’ll need to update regularly).
You should have separate agreements if you plan to buy and co-own or take title to a home together or buy a car or other major purchase together.
You can learn more details on creating a cohabitation contract, find sample contracts for different situations, and get access to downloadable forms in Nolo's book, Living Together: A Legal Guide for Unmarried Couples.
If you're not sure whether living together contracts are valid in your state, you can ask a local attorney. It also makes sense to get a lawyer’s help to prepare or review any agreement that involves a lot of money or property. You’ll want to find a lawyer who’s knowledgeable about family law and contract law in the context of unmarried couples. And if your agreement involves complicated estate planning, you should consult with a lawyer who has expertise in that area.
]]>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:
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.
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.)
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.
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.
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:
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.
]]>While some of these live-in relationships will stand the test of time, many won’t. A Stanford University study found that both same-sex and opposite-sex unmarried couples have much higher breakup rates compared to married couples, even when they’ve been together for two decades or more.
People who are unmarried and uncoupling might face issues similar to their married counterparts when it comes to property division, financial responsibilities, and child custody.
Although it’s not as legally cumbersome as a divorce, breaking up while living together takes preparation. It’s important to know what rights you might (or might not) have when ending a live-in relationship and consider situations where you might need legal advice.
Generally speaking, breaking up with someone you live with is not as complex as when a married couple goes through a divorce.
“You don’t have to go through the court system like you do if you're married because you don’t have a legal status to be resolved or terminated,” says Frederick C. Hertz, an attorney and mediator in Oakland, California, and co-author of Living Together: A Legal Guide for Unmarried Couples.
This makes breaking up a cheaper, simpler option for most unmarried couples. But on the downside, Hertz says, “If there are conflicts, you don’t have ready access to the legal system.”
That’s because laws that protect married couples—on property ownership, financial support, child custody, and more—don’t apply to unmarried couples. And that can sometimes make a split complicated.
Whether you want to initiate the breakup with your live-in partner, or suspect the end of the relationship is near, it’s best to be prepared. Hertz recommends completing these six important tasks before talk of breaking up gets serious.
You might need to make immediate plans to protect yourself and safely leave the relationship if you’re being threatened or abused by your partner. Some states have legal protections for tenants who are experiencing domestic violence. Consider applying for a temporary restraining order if you need to keep your partner away from you and your home.
Breaking up with someone you live with isn't always cut and dry. Sometimes there are factors that complicate matters for one or both partners.
That's why it's a good idea to have an agreement in place even before you move in with each other, or at least before either one of you decides to leave, Hertz says.
Writing a living together contract or cohabitation agreement gives couples the option of creating a number of legal documents that help protect their rights as a couple and safeguard each of their individual assets.
Hertz strongly recommends a written cohabitation agreement for couples in certain circumstances. This includes when:
The difference between the end of a marriage versus an unmarried union when it comes to a home is that laws in most states are highly favorable to whoever owns the property, Hertz says.
It’s not possible to cover every situation here, but we’ve put together examples of different scenarios to give you an idea of what you might expect. Always consult a legal expert in your state for advice specific to your situation.
When both partners own the property:
When one partner owns the property:
When you’re renters:
If you and your partner are raising children together—and you’re both the legal parents—your marital status is irrelevant in the eyes of the law.
You don't necessarily need to go through the court system if you can come to child custody and child support agreements on your own. However, if conflicts arise with child custody or support, you or your partner will need to file a case in the family court system.
In most states, you can’t combine the child custody dispute with a financial dispute, Hertz adds. So, if you're ending a relationship with your live-in co-parent and there are financial and custody disputes, the matters will have to be handled as two separate legal actions.
In most cases, you won’t need to go through the court system when breaking up with someone you live with—as long as you and your ex can agree on how to divide your assets and share child custody and support. But, that doesn’t mean you shouldn’t consult with an attorney.
Hertz recommends getting legal advice in circumstances such as when:
If you decide to consult an attorney, search for one who’s experienced in family law issues related to unmarried cohabitating couples.
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In Obergefell v. Hodges, 576 U.S. 644 (2015), the U.S. Supreme Court held that same-sex couples have a constitutional right to “civil marriage on the same terms and conditions as opposite-sex couples.” As courts since have consistently held, that means same-sex couples are entitled to have their valid common law marriages recognized.
What about same-sex partners who lived their lives as married couples before same-sex marriage was legal—in states that would’ve recognized their common law marriages if they’d been heterosexual couples? Many courts have held that the Obergefell decision must be applied retroactively to common law marriages that were established before the Supreme Court’s 2015 decision. That's because any state laws restricting common law marriage to heterosexual couples were void as a violation of the constitutional rights of same-sex couples.
Whether you are or were in a same-sex or opposite-sex common law marriage, you’ll need to provide the same evidence of a common law marriage for purposes of eligibility for Social Security benefits.
To be eligible for Social Security benefits based on your spouse’s earnings record, your marriage generally must have lasted a certain amount of time (although there are exceptions):
If you’ve been in a same-sex common law marriage since before 2015, the date your marital relationship started would not be the date of the Supreme Court’s Obergefell decision, because that decision should apply retroactively. Instead, you should provide evidence from your own lives together of when your common law marriage began.
Admittedly, some things that courts and agencies traditionally considered as evidence of a common law marriage won’t be available for gay couples who entered committed relationships at a time when same-sex marriage was illegal. For instance, as the Colorado Supreme Court explained, it could have been unrealistic or even dangerous for some gay couples to hold themselves out in public as married. They also wouldn’t have been able to file joint tax returns or list their partners as their “spouse” on official records. (Hogsett v. Neale, 478 P.3d 713 (Co. Sup. Ct. 2021).)
But that doesn’t mean it’s impossible to provide other evidence showing when you and your partner first established a marital relationship, such as when the two of you did some combination of the following:
The Social Security Administration will only recognize your same-sex common law marriage if you first established it in a state that recognized common law marriage in general. It doesn’t matter if you moved since then, because all states must recognize valid common law marriages that were established in other states where it was legal.
As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common law marriages. But more than a dozen other states will recognize common law marriages if they were established before the practice was abolished in that state—and some states did that as recently as 2019. Learn more about where common law marriage is recognized and state requirements for these marriages.
]]>This article summarizes the law on housing discrimination against unmarried couples and provides practical tips on avoiding problems with landlords.
Do you have a legal right, as an unmarried couple, to rent a place? Not under federal law. The Federal Fair Housing Acts (42 U.S. Code § § 3601–3619) prohibit discrimination on the basis of race or color, religion, national origin, gender, familial status (having children and pregnancy), and physical or mental disability. Marital status is not one of the protected categories under federal law. (Public housing is an exception. Several courts have interpreted federal law to protect unmarried couples from discrimination there.)
State law is not much better. The majority of states don’t have any legal provisions protecting people from discrimination based on marital status, meaning landlords may legally ask questions about your relationship and may refuse to rent to you if you are an unmarried couple.
While some 20 states ban discrimination on the basis of marital status, most of these states’ laws extend protection to married couples only (meaning that landlords cannot treat married tenants differently from single tenants). Only a few states—Alaska, California, Massachusetts, Michigan, and New Jersey—have clearly ruled that the term “marital status” refers to unmarried couples. In these state, landlords cannot refuse to rent to you simply because you and your rooomate are not married. Oddly, courts in Maryland, Minnesota, New York, and Wisconsin have ruled that the term “marital status” protects single people from being treated differently from married people, and vice versa, but does not protect unmarried couples.
Your best protection against discrimination may be a city or county ordinance prohibiting discrimination on the basis of sexual orientation. Although usually passed to protect the housing rights of gay and lesbian tenants, most local laws forbidding discrimination based on sexual orientation also protect unmarried heterosexual couples as well.
If you suspect (or know for sure) that a landlord won’t rent to you because you’re not married, first find out whether your city or state has a law that has been interpreted to prohibit discrimination against unmarried couples in rental housing. If the answer is yes, you have a decent chance of winning if you fight back.
And keep in mind that even if you live in a state that prohibits discrimination on the basis of marital status, it’s no guarantee you’ll get the place you want. Landlords may reject you for legitimate business reasons, such as a bad credit history or negative references from other landlords.
For more information on housing discrimination, see the Tenants section of the Nolo website.
If your state or city has no law prohibiting discrimination on the basis of marital status, you’ll have to decide how open you want to be with your landlord. Here are some suggestions:
• Act in a highly responsible and respectable manner. Be ready to present financial and credit information and personal references, especially from former landlords. If you convince a landlord that you’ll be excellent tenants, other factors, such as your marital status, will be less important.
• Don’t flaunt the fact that you’re not married. In an age when many married women use their own last name, many landlords will assume you are married and won’t ask. Most won’t care.
• In conservative parts of the country particularly, it may help to go with the flow. In every city, and most large towns, there are neighborhoods with lots of unmarried people. This often tends to be true near universities. If you are new to an area, ask around.
You may not want to rent from a landlord who obviously disapproves of unmarried couples living together. This is especially true if the landlord lives nearby. Life is too short for all the hassles you’re inviting by renting from someone who’s inappropriately interested in tenants’ private lives. If at all possible, look elsewhere.
Few, if any, people selling a house will care about your marital status. But if a seller does refuse to sell to you simply because you aren’t married, you may have little or no legal recourse in most places. In a growing number of states and in some cities, discrimination on the basis of marital status in the sale of real property is illegal. However, in many of these states, courts have ruled that “marital status” applies to married couples (or sometimes single people) but not unmarried couples. If you run into problems buying property as an unmarried couple, contact your city attorney’s office, state fair housing office, or the U.S. Department of Housing and Urban Development (HUD) for advice.
If you face a serious threat of discrimination, consider presenting the house purchase offer in one name alone, and then add the second name only when you are ready to close escrow.
In a few areas, you may face an unexpected obstacle: zoning ordinances aimed at barring unrelated people from living together. Most of these laws prohibit groups of people from living together, but a few also prohibit two unrelated adults from living together. Although it’s very unlikely you’ll run into this sort of problem, it still makes sense to check that the city—or neighborhood—in which you plan to buy isn’t zoned only for people related by “blood, marriage, or adoption.” Also, if you’re buying a co-op or a property subject to a community association, check the rules for any restrictions.
For more information on buying a house, see Nolo's Real Estate section.
]]>Before you launch in, however, make sure you and your future roommate agree on a few matters; not just everyday things like who takes the trash out and who goes grocery shopping, but what happens if and when you decide the relationship isn’t working, or one of you has a major life change such as a new job in another state. Who gets to keep the home? Do you both have to leave? Can one of you buy the other out and if so, at what price?
Well before such an issue turns into a crisis, it’s wise to plan for the possibility that you and your roommate will, eventually, want to part ways, and that either one or both of you will then want to keep the home.
The best way to plan is to create a contract that outlines, among other things, your various options. Below is a rundown on what to include in this written agreement.
Start by determining each of your ownership interests, as a percentage. Typically, each owner would want a 50% share, but that’s not your only choice. Maybe, for reasons unique to your situation, one roommate wants to own more or less than 50%. This could be due, for instance, to one of you planning to front more of the down payment, or one of you wanting to limit the value of his or her property ownership in order to qualify for certain benefits.
You also want to be clear about how you own the property legally (take title). Do you want the property to go to your roommate in the event that something happens to you? Or do you intend for someone else to inherit your share? See How Unmarried Couples Can Co-Own or Take Title to a Home for further tips.
In order to fairly divide up your ownership interests, factor in not only what each of you pays toward the property initially, but what each is expected to contribute to it later, in the form of monthly mortgage payments or even services. If one of you is willing to clean, cook, and grocery shop, for instance, such services have a value that can count as a contribution to homeownership. Keep track of each contribution you make to the home—not just the initial one—so that when you leave the investment, you will get back your entire share.
Flexibility is important when making any type of agreement, and shared homeownership is no different. That’s why it’s worth adding a clause to your contract stating that you have the option to renegotiate the terms of your ownership.
This gives you many options not just when things go bad, but also when circumstances change for any reason. One of you may get a raise at work and want to make a cash contribution to pay down the mortgage. Or maybe you need money and want to take a lesser share in exchange for cash from your roommate.
Knowing that you are not stuck in a situation sometimes makes what seems like an irreconcilable problem—one that might otherwise lead to one or both of you having to leave or sell the house—solvable. And by including a contractual option to renegotiate, you are laying the groundwork for an exit strategy, just in case.
The simplest exit strategy is what’s called a buyout. In this scenario, each roommate is given the option to purchase the other’s share. The terms of the buyout must be outlined in your contract. Will you want a cash buyout? Or are you willing to let your soon-to-be-exiting roommate pay you over time? How will you decide the current value of the house? And then, will you charge interest, and at what rate?
Valuation can be an especially contentious issue, so be clear about acceptable methods for setting a price. The simplest way to arrive at a sales price is to look at recent sales of comparable houses on the market. This is something a real estate agent or professional appraiser can assist with.
If both of you think you may not want to renegotiate terms of ownership, nor consider a buyout, nor deal with rentals, you can include a provision in the contract that requires a sale of the house when one roommate wants to leave. You may never use it, but it could come in handy someday.
Sometimes, one roommate wants to move out but does not have the money to buy his or her share. Or maybe one roommate has a temporary remote work assignment. What then?
This is when it is helpful to have a rental clause in your contract. The roommate who is leaving can rent out his or her portion of the house and continue to have the benefits of homeownership in the form of passive income. Note, it is wise to have a clause stating that the remaining roommate has the right to interview prospective tenants for compatibility and veto anyone he or she is unwilling to live with.
Both parties can, of course, eventually decide to sell the home and recover their respective percentages plus any profits. All selling costs should be shared according to ownership percentages. Be sure to consider the logistics of preparing a house for sale.
To prepare for this, your contract should answer questions regarding whether you agree to stage the home prior to sale, when furnishings will be removed from the house, and what other routine items need to be taken care, and at whose expense, before the home can be listed for sale.
]]>This article won't help you decide whether you need a particular type of insurance but will help you sort out some of the issues involved when buying insurance with a partner.
Life insurance is a topic that many married couples discuss throughout their relationship. But you don't have to be married to take advantage of life insurance protection. If you and your partner are unmarried, but you have assets together (like a home), or you have children, either of you can pay for an insurance policy and list your partner as the beneficiary.
Life insurance may also be on your mind if you're unmarried but want to protect your partner if you die. Many people get life insurance as a benefit of employment or buy their insurance policy through a private company. Either way, you can name your partner as a beneficiary.
Unless you paid cash for your home, most mortgage lenders require homeowners to purchase homeowners' (or hazard) insurance. Homeowners' insurance covers the loss of a house after a fire, flood, or other acts of destruction. It used to be difficult for unmarried couples to buy homeowners' insurance together, but this is no longer true. Many companies now write policies for unmarried couples at the same rates offered to married couples.
However, if you're the sole owner of the house, the insurance company may not automatically cover your partner's belongings on the policy. If your partner has valuable personal property, check with your homeowners' insurance company to see whether it requires both household members to be on the deed. Otherwise, your partner should purchase a separate renters' insurance policy.
Renters' insurance protects tenants against the loss of their personal property due to theft or some act of destruction. Like homeowners insurance, renters' insurance is easy for an unmarried couple to obtain together.
Insurance companies insure the property, not the owners of the property. And the rates are related to your building's age and security, the neighborhood you live in, and how well your landlord maintains the building. Shop around. You should be able to find one policy that covers both of you, although a few companies may try to charge you more or require that you each buy your own policy.
Purchasing automobile insurance can be a problem for unmarried couples, but not to the extent it once was. If you each own a car, you should have no trouble getting separate insurance. For unmarried couples who jointly own one vehicle, obtaining one policy will be cheaper than getting two (one for each partner). But you may have to shop around to find an agent and company that will allow you to do this.
If you jointly own two or more cars, it's often cheaper to get one policy covering all your cars. Most insurance companies allow unmarried couples to combine coverage—and thereby get discounts and other valuable benefits. But again, not all insurance agents or companies will offer these benefits to an unmarried couple. If you need a breakdown of the costs and benefits of combining policies or keeping them separate, speak with your insurance agent.
If all else fails, consider transferring ownership of both cars to one person (call your department of motor vehicles and ask how you can change the title slip) and listing the other person as a secondary driver. Transferring ownership can be messy, especially if you and your partner breakup in the future.
Some cities, states, and private employers offer domestic partner benefits to their employees. And before same-sex marriage became legal, several states had passed laws creating domestic partnerships and/or civil unions which allowed same-sex couples to register their unions in order to obtain the same or similar state marriage benefits that married couples enjoyed. Since the United States Supreme Court legalized same-sex marriage throughout the country, many states have eliminated civil unions and domestic partnerships. However, a handful of states continue to allow them.
If you're in a domestic partnership state, you might be able to obtain insurance for your partner. A majority of the country's largest corporations offer domestic partner benefits. You can find a list of Fortune 500 companies that provide domestic partner benefits, as well as other information on benefits, on the Human Rights Campaign website. You can also contact your human resource director to see if your employer offers health insurance to domestic partners.
Even if your employer does provide domestic partner health benefits, federal law does not recognize domestic partners as spouses for tax purposes. Tax law treats any premium you pay to cover your domestic partner to be taxable income, not a pre-tax deduction from income as it is when the employee is covering a spouse.
Also, be aware that the federal COBRA (Consolidated Omnibus Budget Reconciliation Act) health insurance rules don't apply to your partner if you lose or leave your job. Under COBRA, your employer must allow you to continue health insurance coverage for a certain period of time, as long as you pay the premiums. The law doesn't entitle your partner to continue domestic partner benefits, as would be the case if you were married.
If your employer doesn't provide domestic partner health benefits, and your partner doesn't get benefits through a job (or doesn't work), see whether your employer will agree to cover your partner on its health plan if you pay for the premiums. Group plans available through employment are usually less expensive and often provide better coverage than individual plans.
In some states, the dependent of a worker killed on the job can obtain death benefits from the state workers' compensation insurance program. Because definitions of "dependent" are broad, courts have allowed unmarried partners to recover these benefits in several instances. For example, a Maryland court awarded workers' compensation benefits to a woman who lived with the deceased worker for many years—giving up her job to take care of the house and raise the children while the deceased provided financial support. (Kendall v. Housing Auth., 76 A.2d 767 (Md. Ct. Spec. App. 1950).)
In California, a court awarded benefits to a woman who lived with the deceased worker because she was a "good faith" member of his household, even though she was married to someone else. (State v. Workers' Compensation Appeals Bd, 94 Cal. App. 3d 72 (Ct. App. 1979).) And in Oregon, the Workers' Compensation statute states that unmarried cohabitants are entitled to compensation as long as the couple had children together and lived together for more than one year before the worker was injured. (Or. Rev. Stat. § 656.226.)
However, not all courts have been so generous. In South Carolina, a court denied workers' compensation benefits to a woman living with and dependent on a deceased worker because she was married to another man. (Palm v. General Painting Co., 370 S.E. 2d 463 (S.C. Ct. App. 1988).) And in Nevada, a court denied death benefits to the unmarried cohabitant of a deceased worker, even where the cohabitant had previously been married to the deceased worker because she no longer had a "legally recognizable relationship" with him. (Banegas v. State Indus. Ins. System, 19 P.3d 245 (2001).)
In many states, an employee may obtain unemployment insurance benefits for quitting a job for "good cause." Often, the unemployment board will consider a spouse's decision to leave employment in order to accompany the other spouse to a new home to be a "good cause." In several cases, this benefit has been extended to unmarried partners as well. For example, the Massachusetts Supreme Court ruled that a woman who left her job to remain with her living together partner of 13 years who was relocating his business had compelling reasons to quit and was entitled to unemployment insurance benefits. (Reep v. Commissioner of Dep't of Employment & Training, 593 N.E. 2d 1297 (Mass. 1992).)
The California Supreme Court also awarded unemployment benefits to an unmarried woman who quit her job to follow her partner to another state. (MacGregor v. Unemployment Ins. Appeals Bd., 37 Cal. 3d 205 (1984).) However, in that case, the court based its decision mainly on the fact that the unmarried couple had a child together. It's unclear whether the California Supreme Court would rule the same way if an unmarried couple did not have children together.
If you have specific questions, contact a family law attorney in your area for advice.
]]>Alimony (also called spousal support) is a court-ordered payment from one ex-spouse to the other. The purpose of alimony is to ensure that each spouse can meet financial needs during and after the divorce process. Unless the spouses agree otherwise, the judge will determine if alimony is appropriate and, if so, will decide the amount, frequency, and duration of support.
There are several types of alimony, but each state's alimony awards vary. Typically, needy spouses can request any of the following types of support:
Depending on your case's circumstances, the judge may award periodic (monthly) payments, lump-sum payments, or payments through property exchange. The judge will explain the terms of alimony in your final divorce decree, including the end date.
If your circumstances change before the ordered end date in your court order, you can request a formal review by the court. The legal requirements to modify alimony will depend on your state and your specific divorce decree. For example, if you agreed that your alimony award was non-modifiable, even a significant income change won't be enough to allow the judge to change the order.
Alimony usually ends if the receiving spouse remarries, unless there's a written agreement or court order to the contrary. However, judges in some states have the discretion to continue alimony even after the spouse receiving it remarries—unless your written settlement agreement specifies that payment will stop if one of you remarries.
Typically, the paying spouse's marital status doesn't affect alimony, even if it involves supporting additional children. In most cases, it makes sense for support to end if the supported spouse remarries and no longer needs financial assistance. But it's not always that easy. If your final divorce order is silent on what should happen if the supported spouse remarries, state law will control. Each state has requirements for terminating or modifying alimony, so it's important to check your alimony agreement and final court order and your state-specific laws before rushing to court after discovering that your spouse remarried.
For example, in Arizona, a paying spouse's alimony obligation ends when the recipient remarries, but not until the paying spouse files a formal motion to terminate payments with the court. (Ariz. Rev. Stat. Ann. § 25-327 (B).) On the other hand, Florida residents paying support can immediately stop making alimony payments after the supported spouse remarries. (Fla. Stat. Ann. § 61.08.)
Alimony usually ends if the receiving spouse remarries, unless there's a written agreement or court order to the contrary.
Every state's legal definition of cohabitation varies. States that are silent on a definition agree that cohabitation exists when two people live in the same home in a marriage-like relationship, sharing expenses, without being legally married.
Although most states have clear rules terminating alimony when the supported spouse remarries, what happens if your ex-spouse is in a relationship but not married? The court may still terminate alimony, but it depends on where you live and your case's specific circumstances.
Most states will reduce or terminate alimony if cohabitation significantly decreases the recipient's need for support. For example, suppose you pay monthly alimony to your ex-husband, and he's living with a new partner who is unemployed and broke. In that case, the court may not terminate your obligation to continue supporting your ex-spouse.
Other states will terminate alimony, regardless of whether the cohabitation impacts the recipient's economic status. For example, in one Illinois case, a husband asked the court to end support payments after discovering that his ex-wife was cohabitating with a new partner. The court evaluated several factors when determining whether the cohabitation resulted in a marriage-like relationship, including:
In this particular case, the ex-wife and her new partner spent every day together for over 2 years, spent holidays together, shared finances and meals regularly, and discussed marriage (but decided against it for financial reasons.) The court ruled to terminate the supporting spouse's obligation for alimony, and a higher court agreed. (In re Marriage of Herrin, 262 Ill.App.3d 573.)
In Michigan, the court will terminate support only if the judge believes cohabitation exists after reviewing the totality of the circumstances. In one case, the court laid out various factors to determine cohabitation, including whether the couple lives together, the couple's relationship, and their financial situation. (Smith v. Smith, 278 Mich App 198.)
In those states that do not have laws or court decisions that specifically address the impact cohabitation might have on alimony, it's difficult to predict how a judge will rule. Regardless of state law, if you and your ex-spouse have made an agreement that support or alimony won't be affected by the person who receives it living together with someone new, your agreement will stand. And bear in mind that the person requesting a change in alimony or support payments is the one who must prove that an ex-spouse's situation has changed significantly.
]]>Here’s a breakdown of the current status of domestic partnership in the United States, some information about the benefits of domestic partnerships, and how you might go about registering one if you decide it’s right for you.
Like marriage, domestic partnership is a formal way of recognizing a relationship under state law. There’s no national domestic partnership law—it’s up to each individual state to decide whether to recognize them or to provide a formal domestic partnership framework.
In most states that offer domestic partnerships, the arrangement involves committed, unmarried couples, same or opposite sex, in a relationship that is like a marriage. Most domestic partners share a residence, finances, and might raise children together as unmarried partners.
Domestic partnership benefits vary by state. The most common benefits that you might receive include:
Some employers offer benefits to employees in a domestic partnership even if the state doesn’t recognize the relationship. For more information, you should contact your employer’s human resources department.
Many older adults (age 62 and older) in committed relationships choose to remain unmarried—mostly because marriage could affect their financial situation. Depending on the circumstances and applicable laws, getting married could mean a senior:
In some states, entering into a domestic partnership is an attractive alternative, because it would allow a senior to avoid one or more of these potential downsides of marriage, but at the same time impart important benefits, such as the right to visit the partner in the hospital.
If you’re a senior considering a domestic partnership in lieu of marriage, it’s crucial to understand the pros and the cons of your state’s domestic partnership laws. Some states’ domestic partnerships closely resemble marriage, and might offer only limited benefits. A local family law attorney can help you navigate the state’s laws to determine whether domestic partnership has any advantages over marriage for your situation.
After marriage equality became law, many states and employers stopped offering domestic partnerships. Some states, however, recognize that not all couples want to get married, so they still provide some benefits to committed couples.
Washington, D.C., and the following states offer domestic partnerships:
It’s important to understand your state’s specific requirements before you apply for a domestic partnership. For example, some states limit domestic partnership registration to same-sex couples, while others include opposite-sex couples if at least one partner is over the age of 62.
Depending on where you live, you can establish your domestic partnership by registering with your employer, local government, or the state. (You can find the links to each state’s registration page in the section What States Offer Domestic Partnerships? above.)
Typically, you’ll start by filling out an application and signing it in front of witnesses. You’ll also visit a notary public who will verify both partners’ identities with some form of state identification, like driver’s licenses. When you complete your application, you will file it and pay a filing fee, which varies depending on where you live.
Today, several states and hundreds of municipalities, counties, private companies, colleges, and universities offer domestic partnership benefits.
Just like entering into a domestic partnership, the procedure for ending a domestic partnership varies by state. In some states, it involves basic paperwork. For example, in Hawaii, ending a domestic partnership is as simple as filing a form declaring that the relationship is over; in Wisconsin, it’s a matter of filing an application for termination.
In other states, the procedure for terminating a domestic partnership is more complicated. For example, in California, how you end a domestic partnership depends on the nature of your relationship. If you meet a list of requirements (such as not having been registered partners for more than five years and not having any children born during the partnership), you can terminate the partnership by filing a Notice of Termination of Domestic Partnership with the California Secretary of State. But if you don’t meet the criteria for this simplified procedure, you’ll have to petition a court to end your domestic partnership. If you go to court, you will have to address issues such as property division and child custody.
You often can find information about how to end a domestic partnership on the same website that outlines your state’s registration procedures. Depending on the complexity of your state’s procedures, you might be able to DIY the termination, or, alternatively, an experienced family law attorney can help you with the paperwork.
Beyond formally ending the partnership with the state, you might want to consider drafting a separation agreement that lays out the terms of how you are dividing shared property or accounting for custody of and support of any children of the relationship. A separation agreement might look very similar to a marital settlement agreement that you would draft in a divorce. An experienced family law attorney can help you work through the issues and draft a binding agreement.
Today, several states and hundreds of municipalities, counties, private companies, colleges, and universities offer domestic partnership benefits. While the complete list is extensive, the benefits provided by each are not. Some locations will only provide bereavement benefits to domestic partners. Others might offer the same rights as legally married couples.
For more information on what is available to you in your state, contact an experienced attorney near you. Some of the most common questions asked of attorneys regarding domestic partner benefits include:
For additional information, take a look at Nolo’s Marriage and Domestic Partnership books and forms.
]]>Common law marriage—sometimes called informal marriage—is a marriage that’s established without legal formalities like taking out a marriage license or having a religious or civil ceremony. The basic features of a common law marriage are:
Once a couple meets these criteria for a common law marriage (discussed in more detail below), their legal status is just like any other marriage. That means they enjoy all the rights and benefits of marriage, including:
Couples in common law marriages also have the same legal obligations as any other married couples, such as the duty to support each other and to protect marital property. But if you want to take advantage of these rights and responsibilities, you’ll have to prove that your relationship meets the requirements for a common law marriage.
The first thing to understand about common law marriage is that it’s no longer common. Over the years, most states in the U.S. have stopped allowing these informal marriages, through either their laws or court decisions (known as “case law”). Below, we list where common law marriages are recognized, as well as how it works when a couple in one of these marriages moves to another state.
In addition to living in the right place, you must meet the basic requirements under the marriage laws in your state, such as:
Even once you’ve met those hurdles, you’ll have to prove that your relationship meets the other criteria for common law marriages.
This may seem obvious, but it’s worth emphasizing that both partners must intend to establish a common law marriage—to share their life in a committed, intimate relationship with all the legal and social responsibilities of marriage.
Of course, if one person in the relationship denies agreeing to be married—or one of them has died—the question arises: How do you prove someone’s state of mind without a marriage license or ceremony? That might be easy if the couple signed an agreement or other written document. For instance, Texas allows couples to register their informal marriage filing a declaration with the county clerk. (Tex. Fam. Code §§ 2.401, 2.402 (2022).)
Most of the time, however, judges have to look at a couple’s actions to decide if they had a valid common law marriage.
What does it mean to hold yourselves out as a married couple? Usually, judges must decide this, based on the specific circumstances in each case as well as the standards that have been established in their state’s statutes and—more often—in case law. These standards can vary from state to state. They may also change over time. For instance:
Some of the conduct that can demonstrate your intention to be in a common law marriage include:
Of course, couples might do some of these things and not others. Judges have to weigh all the evidence—including how family and friends view the relationship—and make a decision based on the total picture. That’s why it can sometimes be difficult and complicated to prove that your relationship qualifies as a valid common law marriage.
The myth that you’re in a common law marriage if you live together for seven years is just that—a myth. None of the states that recognize these marriages have set a minimum amount of time that you and your partner must live together before your relationship qualifies. And no matter how long you’ve shared a home, you won’t be considered married unless you’ve met the requirements (discussed above) for a common law marriage.
Only eight states in the U.S. (plus Washington, D.C.) allow couples to establish new common law marriages in those states for all purposes. But that doesn’t necessarily mean you can’t be in a valid common law marriage if you live elsewhere. Some other states recognize these marriages if they existed before a certain date, and one state recognizes them for a limited purpose. Also, all states should recognize common law marriages that were established in other states that allow them. Here’s the breakdown.
The following states currently recognize valid common law marriages—regardless of when they were established—either in state laws or as a result of court rulings:
New Hampshire also recognizes common law marriage, but only for the purpose of inheriting property from a deceased partner, and only if the pair lived together as a married couple for three years until one of them died. (N.H. Rev. Stat. § 457:39 (2022).) In other words, your common law marriage won’t legally exist in New Hampshire until your partner dies, which then allows you to claim any inheritance as a surviving spouse.
It’s worth pointing out that states could drop off this list any time, whether because the legislature rewrites the law or because of a court decision. For instance, South Carolina allowed common law marriage until 2019, when the state’s supreme court held that, going forward, couples could no longer enter into a valid marriage without getting a marriage license. (Stone v. Thompson, 833 S.E.2d 266 (S.C. Sup. Ct. 2019).) And while Rhode Island’s high court didn’t take that action on its own, the justices practically begged the state’s legislature to abolish the “outmoded doctrine” of common law marriage. (Luis v. Gaugler, 185 A.3d 497 (2018).)
Sometimes, a state’s law and its court decisions appear to contradict each other. For instance, Oklahoma’s statute says that you must get a marriage license if you want to be married in the state. (Okla. Stat. tit. 43, § 5 (2022).) But the Oklahoma Supreme Court has said that if the legislature wants to abolish common law marriage—which has long been recognized in the state—it must do so explicitly. (Erlandson v. Coppedge, 451 P.3d 909 (Okla. Sup. Ct. 2019).)
Many states recognize only those common law marriages that existed before the state abolished this type of marriage. The following list includes the states where cut-off date was after 1940. (Presumably, almost no one who entered into a common law marriage before then is still alive.)
If you have a legitimate common law marriage in a state that allows these informal marriage, and you move to a state that doesn’t permit them, your marriage should still be valid where you live now. This is because Article IV of the U. S. Constitution requires states to give “full faith and credit” to the laws in other states—including marriage laws.
In the wake of the U.S. Supreme Court’s ruling that legalized same-sex marriage (Obergefell v. Hodges, 576 U.S. 644 (2015)), courts have consistently held that the high court’s decision applies to common law marriages, just as it does to any other marriages. And several courts have explicitly ruled that Obergefell applies retroactively to same-sex couples who established valid common law marriages under state law before 2015. (For example, see Ranolls v. Dewling, 223 F.Supp.3d 613 (E.D. Tex. 2016).)
Same-sex partnerships could affect some of the factors that courts have traditionally considered when deciding whether a couple’s behavior demonstrated their intention to be in a common law marriage. For example, as the Colorado Supreme Court pointed out, before same-sex marriage was legal, gay couples wouldn’t be able to show that they filed tax returns as a married couple or listed their partners as "spouse" on beneficiary designations or other formal documents. Also, their “precarious legal and social status” may have prevented them from holding themselves out to the larger public as a married couple. Still, they must have engaged in other conduct that demonstrated their shared intention to establish a marital relationship. (Hogsett v. Neale, 478 P.3d 713 (Co. Sup. Ct. 2021).)
There’s no such thing as “common law divorce.” If you had a valid common law marriage and then split up, you generally need to get divorced under your state’s laws that apply to ending all marriages, particularly if you want the court to issue orders dividing your property or awarding alimony.
Often, you have to file a legal or administrative proceeding to have your common law marriage recognized, such as when you’re requesting alimony or a property division in a divorce, but your former partner denies ever agreeing a common law marriage. Some states have set time limits on these claims.
For instance, Texas law says that if you don’t start a proceeding like this within two years after you separated from your partner, the law will consider that you weren’t in a common law marriage. (Tex. Fam. Code § 2.401(b) (2022).) And in Utah, you must file a petition for an “unsolemnized marriage” while you’re still in the relationship or within one year after you’ve split up. (Utah Code § 30-1-4.5(2) (2022).)
You don’t have to be married to change your name. In theory, many states allow you to legally change your name by usage only—meaning that you simply start using your new name, without any court action. Practically speaking, however, if you’re in a common law marriage, you’ll need an official court order changing your name before you can get government agencies and many private companies, such as banks and title companies, to accept your new name.
If you live together in a state that recognizes common law marriages but don’t wish to be married to your live-in partner, it’s a good idea for you both to sign a living together agreement (sometimes called a “cohabitation agreement”). In the agreement, you can:
It’s particularly important to have an agreement like this if you use the same last name, mix your property together, or take any other actions that could later be considered evidence of establishing a common law marriage.
]]>If one partner contributes substantially more to the down payment on a house than the other, that person may want to own more than half of the property. As with the Contract for Equal Ownership of a House, you can tailor an agreement to your own particular situation when it comes to issues such as sharing monthly housing costs and what happens to the house if you break up.
To complete the Contract for Unequal Ownership of a House form, follow the directions above, with the following exceptions:
Clause 2 (Title). The Contract for Unequal Ownership of a House assumes you will take title as tenants in common, the appropriate form for taking title when you have unequal shares of ownership in the house.
Clause 3 (Splitting Costs). The clause in this contract allows you to split costs, such as down payment and monthly mortgage payments, however you want.
EXAMPLE:
Kelly and Sam contribute different amounts to the down payment on a house (Kelly one-third and Sam two-thirds) and they decide to split ownership of the house the same way. To keep things simple, Sam will pay two-thirds of the monthly mortgage, taxes, and insurance payments. Because they use the house more or less equally, Sam and Kelly agree to divide utilities and other routine monthly expenses equally.
If one person has lent the other down payment money, be sure to read the discussion of “Equal Ownership of a House,” above, especially the discussion of promissory notes. It’s not easy to decide whether to use the loan approach or the unequal ownership concept. If the property goes way up in value, the unequal ownership structure will favor the owner with the greater share—but if the property values go down, the one making the larger contribution would be better served by the loan model. Because you don’t know which direction values are heading, there is no right or wrong answer. Instead, pick the approach that most closely matches the way you think about your co-ownership arrangement.
Contract for Unequal Ownership of a House
Sam Rutherford and Kelly Franklin make the following agreement to jointly purchase and own the house at 9 Oak Road, Austin, Texas (hereafter house):
1. We will purchase the house for $ 400,000 (including closing costs).
2. We will take title as tenants in common with the following shares:
Sam â…”
Kelly â…“
3. Sam will contribute â…” and Kelly will contribute â…“ of the down payment and closing costs. Sam will pay â…” and Kelly will pay â…“ of the required payments for the mortgage, homeowners’ insurance, property taxes, and [fill in any additional costs or fees such as any fees required by a homeowners’ association] . All use-related expenses (including utilities and the cost of routine repairs) and maintenance will be paid equally. Any improvements to the house costing more than $ 500 will be made by mutual consent with each of us agreeing to pay half, and each shall contribute equally to all such improvements.
4. Should either of us decide to end the relationship and cease living together, one of the following will occur:
(a) If one person wants to stay and the other wants to move on, the person staying will pay the person leaving fair market value (see Clause 5) for his or her share within 90 days. When payment is made, the person selling his or her share will deed the house to the person buying the house. The person buying the house will ensure that the selling partner’s name is taken off the mortgage. If the lender refuses to remove the selling partner’s name from the mortgage, the buying partner will obtain a new loan in his or her name only. If the buying partner cannot obtain a new loan in his or her name only, the house shall be sold.
(b) If both of us want to keep the house, we will try to reach a mutually satisfactory agreement for one to buy out the other. If by the end of two weeks we can’t, the decision will be made as follows [choose one]:
(1) Right of First Offer. If both of us want to keep the house, Sam will have the right of first offer. This means that Sam may purchase Kelly’s share of the house within 90 days for its fair market value (see Clause 5). If Sam does not make full payment during this 90-day period, Kelly will have an additional 90 days in which to buy out Sam’s share for its fair market value. When payment is made, the person leaving will deed the house to the person retaining it in his or her name alone. The person buying the house will ensure that the selling partner’s name is taken off the mortgage. If the lender refuses to remove the selling partner’s name from the mortgage, the buying partner will obtain a new loan in his or her name only. If neither person exercises his or her buyout right, or if the buying partner cannot obtain a new loan in his or her name only, the house shall be sold.
(2) Coin Toss Method. A friend will be asked to flip a coin within 60 days of our decision to separate. The winner of the coin toss is entitled to buy out the loser’s share, provided the winner pays the loser fair market value (see Clause 5) within 90 days. If full payment isn’t made during this period, the loser of the coin toss will have an additional 90 days in which to buy out the winner’s share of the property at fair market value (see Clause 5). When payment is made, the person leaving will deed the house to the person retaining it in his or her name alone. The person buying the house will ensure that the selling partner’s name is taken off the mortgage. If the lender refuses to remove the selling partner’s name from the mortgage, the buying partner will obtain a new loan in his or her name only. If the buying partner cannot obtain a new loan in his or her name only, the house will be sold.
(c) If neither of us wants to own the house or payment isn’t made within 90 days, the house will be sold and the profits divided as follows: Sam: â…” and Kelly: â…“ .
(d) We are both responsible for our share of the mortgage, insurance, and taxes until the house is sold or it changes ownership. If one of us moves out of the house before it is sold, the remaining person will make a good faith effort to find a tenant who will pay a fair market rent. Assuming a tenant is found, the rental amount will be credited against the departing partner’s payment for shared housing costs.
5. Should either of us decide to end the relationship, we will do our best to agree on the fair market value of our house. However, if we can’t agree, we will jointly choose and pay for the services of a licensed real estate appraiser to conduct an appraisal, and we will abide by the result. If we can’t agree on an appraiser in the first place, each of us will independently retain and pay for the services of a licensed real estate appraiser. The fair market value of the house will be the average of the two appraisals. “Fair market value” for one person’s share of the property is defined as an amount equal to the fair market value of the entire property, less the then-current mortgage amount, multiplied by that person’s percentage ownership interest in the property.
6. Should either of us die, the survivor, if he or she has not become the owner of 100% of the deceased person’s share through a will, has the right to purchase the portion of the property given or left to someone else at the fair market value of that share (to be arrived at under the terms of Clause 5) within 200 days of the date of death.
7. If either of us is unable or unwilling to pay his or her share of the mortgage, taxes, or insurance payments in a timely manner, the other may make those payments. These payments will be treated as a personal loan to be paid back by the person on whose behalf they are made within six months, including ______% interest per annum. If the loan isn’t repaid in six months, the debtor must vacate the house and either sell his or her interest (in which case the buying partner must ensure that the selling partner’s name is removed from the mortgage, as set forth in Clause 4) or agree to sell the entire property at fair market value which will be established by appraisal, as set out in Clause 5.
8. This contract is binding on our heirs and our estates.
9. Any dispute arising out of this agreement will be mediated by a third person mutually acceptable to both of us. The mediator’s role will be to help us arrive at a solution, not to impose one on us. If good faith efforts to arrive at our own solution with the help of a mediator prove to be fruitless, either of us may make a written request to the other that the dispute be arbitrated. If such a request is made, our dispute will be submitted to arbitration under the rules of the American Arbitration Association, and one arbitrator will hear our dispute. The decision of the arbitrator will be binding on us and will be enforceable in any court that has jurisdiction over the controversy. By agreeing to arbitration, we each agree to give up the right to a jury trial.
Reflections on Contract Writing: Keep It Simple!
Trying to divvy up ownership of a house with 100% accuracy can be more trouble than it’s worth. We can’t overemphasize that the best contracts are the simplest. For example, we recommend rounding off fractional ownership interests (25% and 75%, not 24.328% and 75.672%). And if one partner puts up a little extra cash or labor, or forks out a bit more money to make an emergency roof repair, either forget it or consider the extra contribution a personal loan and record it in a separate promissory note rather than repeatedly redrafting your ownership contract to adjust your respective ownership percentages a smidgen. As long as any separate promissory notes are paid off before or when the house is sold, this approach is safe and simple
Social Security Retirement Insurance benefits are available to anyone who meets the work credit requirements and reaches retirement age. Because you pay into the retirement system through your paycheck (or taxes) and individual work history, the government won’t reduce your benefits if you live with another adult.
Social Security Disability Insurance (SSDI) benefits are available to individuals who are disabled and can’t work. Before you can receive SSDI, you need to go through a stringent application process to demonstrate that you are unable to work. SSDI is a monthly cash benefit program meant to supplement the income you lose if you become disabled, and your living situation will not change the monthly award unless you reside with a dependent child, in which case the government will likely provide your child with a monthly dependent benefit.
Supplemental Security Income (SSI) is another government-funded benefit available to individuals (or couples) who are both low-income and either disabled, blind, or over the age of 65. Because SSI is based on an applicant’s income and qualifying disability, unmarried partners who both qualify individually may receive more benefits than a married couple. For example, unmarried partners who are eligible may receive up to $750 monthly from the SSI program. The maximum available monthly benefit for married couples, however, is only $1,125. If you have a qualifying child, you may also receive up to $376 per month in “essential” person benefits.
Although your state Department of Human Health and Services can’t restrict who you live with, it can reduce or eliminate your benefits based on the size of your household or combined income.
Each state has a variety of income-based benefits, like housing assistance, welfare, and food stamps, that may be impacted if you live with an unmarried partner. Although your state Department of Human Health and Services can’t restrict who you live with, it can reduce or eliminate your benefits based on the size of your household or combined income.
For example, if you’re a single mother receiving assistance and your child’s other parent moves into your home, the state will include both incomes in the reevaluation of your monthly eligibility.
The Housing Choice Voucher Program—Section 9—is a federal program administered by each state. The purpose of the housing program is to provide low-income, disabled, or older individuals and families with affordable housing options. The programs are based on income and household size, so if you apply as an individual and the state approves your application, you will need to update your case file with your local Department of Human Services Department if you would like to add a member to your household. Typically, if you add members to your home, the state will recalculate your benefits using all available income, which may reduce your monthly voucher or benefit.
While all the previously mentioned programs are available to people who qualify, it’s important to understand that the benefits available are limited and resources are often low. If you qualified for assistance in the past, but no longer require it, it’s crucial that you contact your caseworker to update your file. Additionally, if you have significant changes in your case, like moving in with an unmarried partner, you must inform your local benefits agency to ensure you’re receiving the right amount of monthly assistance.
If you fail to update your state agency and your caseworker discovers a change in your situation that would decrease your benefits, you do run the risk of losing your benefits for the failure to update. The local Department of Human Services can open an investigation into your case and depending on the results, you may receive a letter informing you that the state is discontinuing your benefits. You can request a formal hearing to reevaluate the outcome of the investigation.
If you have questions, you should contact your local Department of Human Health and Services.
]]>For some couples however, sharing a last name signifies an unbreakable union. Fortunately, the process to change your name is relatively simple.
If you’d like to take your unmarried partner’s last name, you can do so with a court order, but you'll need to follow your state’s guidelines and restrictions. State rules may vary, but these are the most common:
Some states allow you to change your name by using the new name and gradually changing your official documents to match the name you’re using. This "usage method" is legal in many states, but it’s not always effective. In most cases, you can’t change your government identification without a court order, like a marriage certificate or divorce judgment.
Most government agencies, colleges, employers, and banking institutions require a proper form of government identification before you can receive services or apply for benefits. In our post-September 11th world, many agencies won’t accept your word that your new name is legitimate, especially if it doesn’t match your current identification.
For most people, it’s worth spending the time and money to legally and officially change your name.
In the event of a break up, married couples can simply request a name change in their divorce judgment, but unmarried couples will need to complete a second court process in order to use their original names again.
Each state’s name change requirements vary, but most require you to file a formal petition (written request) with the local court. Your request must be complete with your current and proposed new name and include a statement that you’re not seeking a name change for any illegal purpose. To prevent anyone from committing fraud or escaping creditors, many courts require you to publish notice of the proposed name change with the local newspaper to inform potential creditors.
In some states, you must pay for and obtain an official set of fingerprints. In most cases, you can contact your local law enforcement agency to schedule a visit and inquire about the cost.
Once you meet your state's requirements, you’ll attend a hearing in front of the judge to certify under oath that you’re changing your name willingly and without fraudulent intent. After you receive the signed court order, you can present it to local agencies, creditors, banking institutions, and schools to implement the name change and gain a new identification card.
Remember, your name change is permanent. In the event of a break up, married couples can simply request a name change in their divorce judgment, but unmarried couples will need to complete a second court process in order to use their original names again.
Common law marriage is still recognized in several states. There is no formal ceremony required to establish this type of relationship. The requirements will vary by state, but generally, a common law spouse can prove a common law marriage by showing specific conduct, including:
Sharing the same last name is one of the many ways a couple can hold themselves out to the public as married. If you live in a common law marriage state, and you don’t want the state to consider you legally married, it’s critical that you take this into consideration before you change your name to match your partner's. You may want to consider entering into a written agreement of mutual intent not to enter a common law marriage. If you have questions about the legal impact of sharing a last name with your partner, you should speak to a local family law attorney.
It’s no surprise that when you and your unmarried partner share a name, you may have property division issues down the road if you break up. Whether intentionally or unintentionally, sharing your last name may indicate your intention to combine income and may imply that you and your partner share personal or real property.
If you would like to protect yourself from future property division issues, you and your partner can create an agreement to keep your property separate. You might also consider asking an attorney to help you draft a cohabitation agreement, which allows unmarried couples to identify separate and joint property and agree how to split financial responsibilities in the event of a break up.
]]>My ex and I separated four years ago but had a registered common law marriage. My current boyfriend and I, with whom I’ve lived all this time, are discussing marriage, but I’m not sure whether any divorce laws exist for a registered common law marriage. I also found out that my ex registered another common law marriage two years ago. Could that mean that we aren’t married?
Contrary to popular belief, cohabitation alone for an extended period isn’t enough to create a common law marriage. For your common law marriage to be valid, you must live together (for a period defined by your state), intend on living as a married couple, and you must portray yourselves as married to the world. The most significant difference between common law and traditional marriage is that the couple doesn’t obtain a license before getting married.
Only a few states allow common law marriages today. Your first step is to determine if your common law marriage was valid when you entered it. Although the requirements vary a bit from state to state, typically, you'll have to prove to the court that you and your ex both intended to be married. You can demonstrate this with evidence of conduct showing an intent to be married, including:
Neither you nor your ex-spouse are free to remarry until the court signs your judgment of divorce, which means your partner’s second common law marriage is invalid.
]]>Be sure you both date and sign your settlement agreement and each keep a copy. It’s a good idea to have your signed agreement notarized, just in case there’s a future need (in court or arbitration) to prove that the signatures on the agreement are not forged.
Your signed agreement is enforceable in court in the same way as is any other binding agreement—assuming the agreement doesn’t call for an illegal action.
Be sure to have an experienced attorney review your agreement, especially if you have substantial assets.
Most states and the federal government have moved away from using the words “legitimate” and “illegitimate” in differentiating between children whose parents are married or not married. Some states have adopted the Uniform Parentage Act, which says that “the parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” Other states have modified versions of the Act in place, but either way, many states have now abandoned outdated notions of legitimacy.
Even in the states that have adopted this Act, however, it’s still crucial to know who a child’s parents are. This is because when it comes to inheritance, child support, custody, adoption, and many other areas of family law, the rights and duties of parents are clearly stated. And don’t think that a father’s refusal to sign a paternity statement will get him off the hook for paying child support. If a father doesn’t voluntarily sign a paternity statement, the state will go to court to establish that he is the father and collect child support.
Being named father on a birth certificate isn’t always adequate proof to a court that the named man is the father. A lawsuit to have a man declared the father of a child is called a paternity or support action. It can be brought by either the mother or the father. Advances in blood and DNA tests make it possible to determine paternity with better than 98% accuracy, and to disprove it with 100% accuracy.
In Trimble v. Gordon, 430 U.S. 762 (1977), the Supreme Court held that states may set up different standards of proof necessary to establish paternity, as long as the standards are not completely arbitrary.
In the states that have adopted the Uniform Parentage Act, a man is presumed to be the father in any of the following circumstances:
Circumstance 1: He is married to the mother at the time the child is born, or was married to her within 300 days of the birth of the child. This means that, if the man dies or the couple divorces while the mother is pregnant, he is still presumed to be the father.
Circumstance 2: He and the mother, before the birth of the child, attempted to get married (obtained a license and had a ceremony) but the marriage wasn’t valid because one person was still married to someone else, the clergyperson could not perform a marriage, or a similar reason, and the child was born during the attempted marriage or within 300 days after the termination of the marriage, be it by court order, death, or simple separation.
Circumstance 3: After the child’s birth, the father and the mother have married (or gone through a ceremony in apparent compliance with law) although the marriage could later be annulled for some reason, and the man
a) has acknowledged paternity in writing—for example, by signing a paternity statement
b) with his consent, is named the father on the child’s birth certificate, or
c) pays child support under a written, voluntary promise or has been ordered to pay support by a court.
Circumstance 4: While the child is still a minor, the man (who is not married to the mother) receives the child into his home and openly holds out the child as his natural child.
These rules create presumptions. Legally, a presumption means that certain facts are presumed to produce a certain legal conclusion unless rebutted by strong evidence. For example, in Circumstance 4, if a man takes a child into his home and says he’s the father—even though he never married the mother—he’s presumed to be the father. This doesn’t mean that he is—he or the mother might prove that though he received the child into his home and told everyone that he was the father, he wasn’t. This can lead to a court fight involving blood tests to prove paternity.
There are still quite a few states that haven’t yet adopted the Uniform Parentage Act, and many of these still use the terms legitimate and illegitimate. But except for the use of the term illegitimate, the laws of these states relating to the rights of unmarried parents are usually similar to the provisions of the Uniform Parentage Act. This is because in a long line of court decisions, beginning with Levy v. Louisiana, 391 U.S. 68 (1968), the U.S. Supreme Court has struck down most state laws giving legitimate children more legal rights than illegitimate children.
In most states that still label children illegitimate, it’s possible to change the label from illegitimate to legitimate if any of the following things apply:
• The parents marry each other. (Children born during a marriage that is later annulled remain legitimate.)
• The father signs a paternity statement or voluntary declaration of paternity acknowledging in writing, under penalty of perjury, that the child is his. If the state has a registry for children born of unmarried parents, it is also a good idea to file the paternity statement with your state’s Bureau of Vital Statistics.
• The father welcomes the child into his home or holds himself out as the father.
• The parents go to court and have a judge rule that the man is the father. This can usually be done by joint petition—where the parents go to court together in a nonadversary proceeding.
Some situations may present competing presumptions of fatherhood. For example, suppose a woman cohabiting with an unmarried partner is still married to another man. If a child is born during that time (while the marriage still exists), the husband is legally presumed to be the child’s father. But if the unmarried partner acknowledges paternity by signing an acknowledgment of paternity and holding the child out as his child, he generally will also be presumed to be the child’s father. When there are competing presumptions and both men want to be considered the child’s father, it will be difficult to avoid a court proceeding to determine who the child’s father is.
Biology is not necessarily destiny. In one California case, a man who was not the child’s biological father still won a court battle of competing presumptions. (Steven W. v. Matthew S., 33 Cal. App.4th 1108 (1995).) A similar result was reached in a Colorado case in which the court held that the best interests of the child must be considered in weighing competing presumptions of paternity. (N.A.H. v. S.L.S., 9 P.3d 354 (2000).) In a case in Indiana, a woman was not allowed to challenge her ex-husband’s paternity rights, even though genetic testing showed he was not the child’s biological father, because she had been cohabiting with him when the child was conceived (before they got married) and she had consistently identified him as the father, including in court documents relating to their divorce. (Ohning v. Driskill, 739 N.E. 161 (2000).) On the other hand, a Maine court upheld an order declaring a man was not the father of a child born to his ex-wife during the marriage, because both parties knew the husband was not the biological father. (Stitham v. Henderson, 768 A.2d 598 (2001).)
The right to be considered a full legal parent can be lost if a parent fails to exercise parental responsibilities. The law calls this “abandonment.” In most states, abandonment is defined as a period of time (often two years) in which a parent who does not have physical custody fails to contact and—if the parent has the ability—to support a child. Some states have shortened this time period to one year. If you have no money and don’t have the ability to support your child, you won’t be considered to have abandoned your child as long as you visit regularly. The key is that if you are not the parent with custody, you must stay involved with your child to the best of your ability.
A parent who has not assumed any parental obligations for several years faces an uphill battle if there’s a later abandonment action or custody fight. However, that parent is still entitled to be notified and have a hearing on a custody challenge. (Stanley v. Illinois, 405 U.S. 645 (1972).) It is important to note that if a parent has relinquished the opportunity to develop a relationship with the child, and has only a biological link to the child, courts may not take the claim for custody very seriously. Obviously, if a parent without custody has made repeated attempts to contact a child and has been prevented from doing so by the other parent, a court would be willing to give the case more consideration. If you have not been regularly visiting and supporting your child, you should go to court to assert your rights as soon as possible. A parent who is out of contact with a child is extremely vulnerable to having parental rights terminated in an abandonment proceeding.
An experienced family law attorney can help you resolve issues regarding your legal rights and those of your children. See Nolo’s Lawyer Directory for a list of local family law attorneys.
]]>A living together contract can be comprehensive, covering every aspect of your relationship, or it can be specific, covering only one transaction (such as a new house purchase). These contracts don’t need to be like the fine-print monsters pushed at you when you buy insurance or a car. You can, and should, design your agreement to say exactly what you both want, in words you both understand. (More below on how to write a cohabitation contract.)
The main purpose of most cohabitation contracts is to set out how unmarried partners will handle their finances and property while they’re living together—and whether they’ll have any rights to each other’s property if and when they split up. So these agreements will typically cover:
Learn moreabout cohabitation property agreements, including the legal requirements and who needs these contracts.
It's wise to include at least brief provisions in your agreement stating what will happen if you split up or if one of you dies. You may simply want to say that if you separate, each of you will have the right to take immediate possession of your separate property and that all jointly owned property will be divided equally. If there is property that you own together—but not in equal shares—you'll want to specify a method for dividing it between you.
You should also address the issue of whether one of you will pay—or have no obligation to pay—some form of financial support to the other (sometimes known as “palimony”) after you separate.
It's especially important to consider what will happen if one of you dies. Without properly prepared documents, members of an unmarried couple have no right to inherit property from one another. You can use your living together agreement to specify how you want to provide for each other; it will serve as strong evidence of your intentions. Be aware, however, that writing out a plan in your agreement is not enough. You should also use a will, living trust, or other estate planning documents to ensure that your plan is carried out as you wish. Learn more about estate planning for unmarried partners.
One of the main advantages of a clear, written cohabitation contract is to avoid expensive court battles.
One of the main advantages of a clear, written cohabitation contract is to avoid expensive court battles—for instance, if there’s a dispute over ownership of some property that you bought during the relationship, or if one of you claims you’re owed financial support after a break up. But even with a written contract, disputes can still happen—such as when the partners disagree about the exact meaning of some provision in the contract.
That’s why it’s always a good idea to include a provision in your agreement that spells out how you’ll handle any future disputes over the contract. For example:
The agreement should also spell out how you’ll choose and pay for a mediator or arbitrator.
If one of you will work outside the home while the other will be fully or mostly responsible for homemaking (and caring for children if you have them), you will probably want your agreement to address compensation or financial protection for the stay-at-home partner—who presumably has given up educational or employment opportunities (or both). You can choose between the different ways of addressing this issue, including one or more than one of the following:
Depending on your circumstances, your cohabitation agreement might also address other issues, such as:
Even if your agreement simply refers to the fact that the two of you are lovers or are having a sexual relationship, some courts will rule that the entire contract is invalid.
Most unmarried couples with relatively simple finances should be able to write their own cohabitation agreement. We’ve outlined a few tips below. (You can also find information and suggestions for specific contract clauses, as well as templates for creating your agreement, in Nolo's book, Living Together: A Legal Guide for Unmarried Couples.)
1. Talk it out first. Before you can prepare a written cohabitation agreement, you’ll need to talk about it, identify your points of agreement and disagreement, and see if you can work out compromises on the latter. This is especially true if one of you will be making sacrifices for the relationship, such as moving a long distance or giving up a job to care for the home and small children.
Many people find that creating a contract forces them to deal with the guts of their relationship. This is a healthy thing to do, but it can also be trying. Take your time, and don’t expect to finish in an evening. A good contract often involves compromise and accommodation. Preparing your contract should be an affirmative act, but it’s up to you to make it so. If you get bogged down, take a break and get back to it when you’re both feeling more cheerful.
2. Don’t try to cover everything in one contract. Relationships and people are complicated. If you try to cover too much ground in one contract, you may never figure it all out. It’s often better to have several smaller agreements covering specific issues. For example, you may want to separate your general property agreement from an agreement on supporting a partner who’s in school. Also, you should have separate agreements when you’re planning to co-own or take title to a home together, or if you’ll be buying a car or making another major purchase together.
3. Don’t get personal—or put personal issues in a separate agreement. Courts will generally enforce valid agreements between unmarried partners that cover property, payment for services (excluding sex), or payment in exchange for giving something up, such as a job. In contrast, judges aren’t likely to enforce agreements covering nonmonetary issues of a personal nature, such as who will do the dishes and who will walk the dog. Although it’s a good idea to be clear with your partner on things such as housecleaning and cooking, it’s not a good idea to include these issues in a contract with the bigger legal and financial issues of living together.
If you want to work out an agreement on personal relationship issues, put them in a separate agreement. Then, if the worst ever happens and you find yourselves in court, the judge will only see the separate agreement on property and finances.
4. Don’t mention sex—but do include other “considerations.” All valid contracts require “consideration,” the benefit each party will get from the arrangement and the thing they’re agreeing to do (or not do) in return for that benefit. But if the consideration in a cohabitation contract is sex, a judge will almost always refuse to enforce it. That’s because it’s illegal to pay for sexual services. Even if your agreement simply refers to the fact that the two of you are lovers or are having a sexual relationship, some courts will rule that the entire contract is invalid.
It’s safest to avoid any potential problems by avoiding any reference to your sexual relationship. If you’re agreeing that one of you will provide most of the financial support during and after your relationship, you should spell out what the other partner will be giving up (such as a job or educational opportunities) and doing in return (such as cooking, taking care of the home and the couple’s personal business, taking care of the children, and providing companionship during travels).
5. Don’t agree to share property if either of you is still married to someone else. In many states, it might be possible to create a legally valid cohabitation agreement to share property even if one or both partners is still married but is permanently separated from their spouse. However, this is a legal gray area with little certainty. So if either of you is still married to someone else, it’s best to agree in writing to keep all your property separate until the divorce is final. Then you can write a new agreement, pooling your property if you both wish to do so.
6. Know when you need independent legal advice. Each of you should have a separate lawyer at least review your draft agreement if one or both of you own a lot of property, or if the two of you have unequal bargaining power. It’s just common sense that you’d want advice on the consequences of a cohabitation property agreement when you have significant or complicated finances—especially if one of you has significantly more assets than the other. Also, a judge might not enforce a cohabitation contract if it appears that one partner has taken advantage of the other.
7. Beware if you live in Illinois, Georgia, or Louisiana. As of 2023, courts in Georgia and Louisiana won’t recognize and enforce cohabitation agreements. (Abrams v. Massell, 586 S.E.2d 435 (Ga. Ct. App. 2003); Ga. Code § 13-8-1 (2023); Schwegmann v. Schwegmann, 441 So.2d 316 (La. Ct. App. 1983).) It’s also doubtful that a judge in Illinois would enforce a living together contract, because the Illinois Supreme Court has held that these agreements violate the state’s public policy of outlawing common law marriage. However, you might be able to create a valid contract with your partner if it states that the agreement is a contract to share ownership of certain property and has nothing to do with your personal relationship. (Blumenthal v. Brewer, 69 N.E.3d 834 (Ill. 2016); Spafford v. Coats, 455 N.E.2d 241 (Ill. Ct. App. 1983).) Speak with a lawyer for advice.
8. Don't forget the final steps. Once you’ve settled on what goes into your cohabitation agreement and put everything in writing, make sure that you and your partner each have copies of the final contract, along with all attachments (such as lists of your property). Sign and date both copies. Usually, you won’t need to sign in front of a notary, but some states require notarizing agreements that include issues affecting real estate. In that case, you can record the notarized agreement at your county records office. Notarization won’t make your contract legal or enforceable. It just proves that your signatures weren’t forged, which can never hurt.
Your living together contract will be enforceable after you and your partner get married only if the agreement:
Because of these dual requirements, most couples who prepared a cohabitation contract will have to sign a new prenuptial agreement (“prenup”) if they later decide to get married and want to make similar arrangements about their finances and other issues.
If you get married without a valid prenup, your state’s laws on property ownership during marriage will apply, along with the standard rules on the rights and obligations of married people. And if you later end your marriage, the divorce laws in your state will also apply—including rules on property division, alimony, and child custody.
If you want the property ownership terms of your living together agreement to apply during your marriage—for example, if you want to keep property separate despite your state’s laws on ownership of property during marriage—you can usually do this by rewriting your agreement as a premarital agreement. However, be aware that states prohibit couples from including provisions in a prenup about child custody or support.
Follow these steps to convert your cohabitation agreement into a prenup:
For more information about premarital agreements, as well as forms for creating one, see Nolo’s book, Prenuptial Agreements: How to Write a Fair & Lasting Contract. For legal help preparing your agreement, see Nolo's Lawyer Directory for a list of local family law attorneys.
]]>Often, you won’t have the right to decide whether your partner will be a cotenant or a subtenant: Your landlord will want all roommates to sign the lease or rental agreement and become tenants.
If you want to have your partner move into your apartment or rental house, here’s our advice:
Letter Requesting Permission to Add a Roommate
1500 Peanut Street, #4
Dallas, Texas
June 2, 20xx
Smith Realty
10 Jones Street
Dallas, Texas
Dear Smith Realty:
I live at the above address and regularly pay rent to your office. I would like to add a second person, Julie Renoir , to my lease beginning July 1, 20xx. She will be glad to complete a rental application and provide a recent copy of her credit report and references.
I will call you soon to discuss this further. Thank you very much for considering this request. Very truly yours,
Clem Lawrence
Renting a place together and signing the same lease is the most common way that two people become cotenants. But you and your partner can become cotenants in another way, too. If you have a place and your landlord approves of an additional occupant, your partner can sign your original lease and become a cotenant. And suppose your partner moves into your rental and is openly acknowledged as a resident by the landlord—the landlord knows she’s there, accepts rent from her, responds to her requests for repairs, and in every other respect treats her just like he treats you. In many states, this behavior on the part of the landlord will make your partner a cotenant, just as if she had formally signed a lease. This means that you’re each on the hook for all rent and all damages to the rental—it doesn’t matter how you split the rent or who caused the damage. You are each independently liable to the landlord for all of the rent and for complying with all terms of the lease or rental agreement. (This is known as the “joint and several” liability rule.) The landlord can hold all cotenants responsible for the negative actions of just one, and terminate both of your tenancies with the appropriate notice. For example, you can be evicted if your partner seriously damages the property, moves in a dog (contrary to the landlord’s no-pets rule), or otherwise violates the lease or rental agreement.
If your landlord approves your request to add a roommate, he or she will probably ask both you and your partner to sign a new lease or month-to-month rental agreement. From your landlord’s point of view, this is far more than a formality, as it makes the new arrival a cotenant who is 100% liable to pay rent and make good on any damage. It’s also desirable from your perspective, because it makes it completely clear that you and your partner share the same legal rights and responsibilities.
A landlord who agrees to an additional cotenant may ask for a rent increase on the theory that more people means more wear and tear. By signing a new lease or rental agreement that creates a cotenancy, you are, in effect, starting a new tenancy, so the landlord can increase rent immediately, rather than give you the usual 30 days’ notice (for a month-to-month rental agreement) or wait until the lease ends.
Unless your rental unit is covered by rent control—or if the landlord is using a big rent increase as a not-so-subtle way to discriminate against you for an illegal reason—your landlord can ask for as much extra money as the market will bear.
But just because your landlord asks for a big rent increase doesn’t mean you have to say yes. One good approach is to counteroffer a lower amount. Let the landlord know that you may rethink adding a roommate, or even move out yourself, if you can’t reach an acceptable compromise.
The landlord also has the legal right to change other conditions of your tenancy when you add a cotenant and sign a new agreement. One change that is particularly likely is an increase in the security deposit. However, this is one area where the sky is not the limit, because many states limit the amount of security deposits. Usually the limit is a multiple of the monthly rent. Keep in mind that if the deposit is already at the maximum, but the landlord raises the rent for the new occupant, the maximum security deposit goes up, too.
People sharing a rental unit usually have certain expectations of each other as roommates. We recommend that you write them down. After all, you sign an agreement with a landlord almost as a matter of course—why not do the same with each other? It’s a good way to make sure you’re both clear as to your responsibilities to each other as tenants—who pays what portion of the rent and utilities, who gets the place if you split up, and the like.
If your relationship ends down the line, memories may have blurred and questions such as “Whose apartment is this, anyway?” may turn into serious disputes. To avoid later problems, write down your understanding when you first move in together. A sample Agreement Covering Rented Living Space is included here.
This agreement can stand alone or be incorporated into a more comprehensive living together contract. You can edit this agreement—for example, you can include paragraphs about living expenses, cleaning responsibilities, or anything else that is important to you.
Agreement Covering Rented Living Space
Julie Renoir Clem Lawrence agree that:
1. We will jointly rent Apartment # 4 at 1500 Peanut St., Dallas, Texas We have both signed a month-to-month rental agreement with the landlord, Reuben Shaw , and have each paid $ 750 towards the security deposit of $ 1,500 .
2. Each of us will pay one-half of the rent and one-half of the utilities, including the basic monthly telephone, cable, and DSL charges. We will each keep track of and pay for our own long distance calls. Rent will be paid on the first of each month and utilities within ten days of when the bill is received. Utilities will be in the name of Clem Lawrence .
3. If either of us wants to move out, the one moving will give the other and the landlord 30 days’ written notice and will pay his/her share of the rent for the entire 30-day period even if he/she moves out sooner.
4. No third person will be invited to stay in the apartment without the agreement of both.
5. If one of us no longer wishes to live with the other, but both want to keep the apartment, the following will occur [check one]:
Julie has first rights to stay in the apartment and Clem will move out.
We will ask a third person to flip a coin to see who gets to stay.
The person who needs the apartment most will retain it. Need will be determined by a third party whom we agree is objective, within two weeks of the date when one informs the other that he/she wishes to separate. In making this decision, the third party will consider each person’s relative financial condition, proximity to work, the needs of any minor children, and [list any other important factors] .
Other. ________________________________________________.
The person who is to leave will do so within two weeks of when that decision is made, and will have an additional ten days to pay his/her obligations for rent, utilities, and any damage to the apartment.
6. Any dispute arising out of this agreement will be mediated by a third person mutually acceptable to both of us. The mediator’s role will be to help us arrive at a solution, not to impose one on us. If good faith efforts to arrive at our own solution with the help of a mediator prove to be fruitless, either of us may make a written request to the other that the dispute be arbitrated. If such a request is made, our dispute will be submitted to arbitration under the rules of the American Arbitration Association, and one arbitrator will hear our dispute. The decision of the arbitrator will be binding on us and will be enforceable in any court that has jurisdiction over the controversy. By agreeing to arbitration, we each agree to give up the right to a jury trial.
7. Additional agreements: ______________________________________.
8. This agreement represents our complete understanding regarding our living together and replaces any prior agreements, written or oral. It can be amended, but only in writing, and any amendments must be signed by both of us.
9. If a court finds any portion of this contract to be illegal or otherwise unenforceable, the remainder of the contract is still in full force and effect.
The Tenants section on this site includes many useful articles on renting a place with others and a sample roommate agreement. It also covers renters’ rights when it comes to security deposits, moving out, and other issues. Also, the article Who Gets the Apartment When an Unmarried Couple Splits Up? discusses the impact of a separation on your rental housing.
]]>If the two of you didn’t sign a joint house ownership agreement that sets forth your intentions in case of dissolution, you have two choices. You can either follow the legal procedures that apply in your state—typically this means the court will order the property to be sold, and the net proceeds (after paying mortgages, liens, and costs of sale) to be divided—or you can reach your own compromise settlement.
In order to sort out who gets what regarding your house, you will need to resolve a few basic issues.
Your first possible conflict may be over who owns what percentage of your house or other real property. Especially if one of you believes he or she owns a larger share, or if only one partner is listed on the deed, this can be difficult if you haven’t previously signed a house ownership agreement. Remember that in just about every state, having both names on the deed to the house creates a legal presumption that you are 50-50 owners, and anyone claiming a different percentage has to prove the existence of an agreement saying so (often in writing).
Fights frequently arise when your contributions to the property have been unequal. Often a partner who has contributed less financially (say, to the down payment) believes that he or she chipped in something else of equivalent value to the property, such as labor to fix up the house. Take into consideration whether either of you has made any significant extra monetary or labor contributions to the property (for example, one of you just paid $15,000 for a new roof, built a garage, or paid the entire mortgage payment for the last three months). If so, be ready to award that person appropriate additional compensation, most often in the form of a reimbursement rather than a greater share of the equity. When trying to reach an agreement, put aside the most extreme arguments of either person, and acknowledge that there is merit to each side’s more rational demands. If conflicts arise over house ownership, it’s best to try the following approach to reach a fair settlement regarding these claims:
• Read the discussion on contracts for equal and unequal ownership of a house for ideas on how to adjust ownership fairly when one person contributes more to the down payment and the other makes other contributions (money or labor).
• One possibility is to reduce each partner’s total contribution (down payments, mortgage payments, labor, improvements) to a dollar figure. By comparing the two figures, you can come up with what percentage of the house each of you owns. If you can’t resolve disputes over the value of your contributions, it often makes sense to get the help of a real estate professional.
• Narrow the financial gap between the two of your positions by compromising on other demands or making other financial concessions.
• Compare the benefit of splitting the difference to the cost of fighting over every last penny. Hopefully, looking at what will happen if you don’t settle will encourage you to come to a compromise figure. If you still can’t reach an agreement, convene a single mediation session where you limit your discussion to this one point of disagreement. In most instances you will reach a compromise by the end of the day. If you are still at odds, convene a single short arbitration session where you empower the arbitrator to resolve this financial dispute quickly.
Next, you’ve got to decide whether you will jointly sell the house to a third party or whether one of you will buy out the other’s interest. Usually, it is much easier and cheaper for both of you if one of you sells to the other (rather than selling it to a third party) because you avoid all the costs that accompany a market sale. So if either or both of you are interested in holding on to the real estate you own together, it makes sense to attempt to negotiate a mutually agreeable solution.
Assuming you haven’t already agreed (pre-breakup) that one person will have first dibs on buying out the other’s share in the house, you may use a coin flip or some other simple mechanism to determine who stays and who goes. (These options are included in the house ownership contracts ) Or, if both of you want to keep the house, you can conduct an informal “auction,” where the partner who is willing to pay the most gets to keep the place. You can also use mediation or arbitration to resolve the conflict. An arbitrator can be given the power to decide who should stay (after hearing whatever arguments you each make) and perhaps award the selling partner financial compensation for having to move.
If you can agree on who is going to buy the house but can’t agree on a sale price, the best way to set the price is to get an appraisal from an experienced real estate appraiser familiar with the local market. If you can’t agree on an appraiser, each of you can get your own appraisal and you can average the results. Understand that most appraisals estimate the sale price, but do not take into account the cost of selling the property. If you have your jointly owned real estate appraised and then agree that one of you will buy out the other, you may want to reduce the price by the amount of the real estate commission that would be charged if you sold the place to a third party. In other words, even though you won’t have to pay a commission when one of you sells to the other, the buying partner will need to do this eventually, so the buyout evaluation probably should reflect this.
In coming up with a buyout price, make sure, in addition to deducting the amount of the broker’s commission, you also figure out and deduct the cost of any deferred maintenance that would have to be done if the place was put on the market. Next, of course, subtract the remaining mortgage amount to arrive at your combined “equity.” Assuming this is a positive number, this is the sum that you should use to determine the buyout price (which will be 50% of that number if you own the property in equal shares).
Find out from a local broker or attorney what the procedures are for doing an internal buyout, and make sure you take into account the costs of transfer. Some states impose transfer taxes or recordation fees, and these need to be allocated between the two of you. Often it’s best to forestall possible disputes by agreeing to pay transfer costs and taxes 50-50. In addition, obtain the proper deeds and forms and, if necessary, have a professional help you fill them out. You may not need to use a title company or buy title insurance if your transfer is relatively straightforward and you aren’t worried about the selling partner’s ability to deliver title to his or her share free of any liens or judgments. If you are worried about possible liens, you will have to go through a title company and purchase title insurance—which can add more than $500 to the cost of transferring title. Either way, once the property has been deeded to one of you, this person will need to record the transfer deed with your local property recorder’s office.
Finally, figure out your options regarding your mortgage. Quite often, the selling partner will agree to keep his or her name on the loan, at least for a year or two, in which case the buying partner would not need to obtain a new mortgage; of course, in this case the buying partner should give the selling partner written assurance that the mortgage will get paid each month, to help prevent the selling partner from ending up with a tarnished credit rating or facing a bank’s demand for payment. If one partner takes his or her name off the loan, in some states and with some banks, the remaining partner can retain the existing loan in his or her own name even after a buyout. (With some loans the selling partner can even be absolved of any further liability.) But in other areas and situations, the buying partner may have to get a new loan. To present a financial statement strong enough to qualify for a new mortgage, the buying partner may need to defer making payments to the selling partner (or make very low payments) for a period of time. If this isn’t acceptable to the selling partner, it may be possible for the buying partner to obtain a home equity loan in addition to the first mortgage.
Even if the buyout is amicable and all deed forms have been signed and recorded, be sure to write up a simple agreement stating what you’ve agreed to. This way you will have a document setting forth your entire agreement, in case a dispute arises later. A sample Home Buyout Agreement you can tailor to your own situation is included here. If you prepare this type of agreement, be sure to have it reviewed by a real estate attorney or broker. You’ll want to make sure that any special rules covering internal buyouts are covered in your agreement.
If neither of you wants the house, you will probably sell it on the market (most likely with a broker’s help). Be sure to select a qualified broker who is sensitive to the fact that you are splitting up. The broker can handle the delicate arrangements of fixing up and showing the home, knowing that things may be tense between the two of you. But given that it’s in both partners’ interest to sell the property for the best possible price, try to work cooperatively.
Once you’ve sold the place, you still need to divide up the proceeds according to your respective percentages of ownership. Fortunately, a dispute about how much each of you owns need not slow up a sale. You can simply agree in advance to put the disputed portions of the sale proceeds into a joint account requiring both signatures; include a proviso that the funds will not be disbursed until you jointly decide on the division and put your decision in writing. If you do not decide within some defined period of time how to divide the profit, agree that the dispute will be mediated and, if no agreement is reached, arbitrated.
If you can’t resolve this dispute by negotiation or mediation, consider submitting it to binding arbitration. You can use a real estate broker (if the dispute is primarily about the value of each party’s contribution) or an attorney (if the dispute is primarily legal) as your arbitrator.
If you own other real estate, such as an investment property or a vacation home, you need to go through the same process as with your primary residence. Decide whether either of you is going to buy out the other’s share or whether you are going to sell the place to a third party. Then figure out the property’s value and resolve any competing claims for reimbursement for extras. Once the dust settles, you may even be able to continue owning the property jointly as an investment. This is especially likely if you agree to hire a professional management company so you don’t have to deal with each other over the details. But if you go this route, be sure to have a written management agreement for the property—you are business partners now, not lovers, so you need to act in a businesslike manner.
For more on the legal and financial issues of selling real estate, see Selling a House in the Real Estate section of this site.
]]>Unmarried couples can use retirement plans in much the same way—to provide for a surviving partner. But unmarried couples need to jump through a few more hoops to accomplish the same thing.
Whether you have an IRA, a 401(k), or another type of retirement plan, you may name any beneficiary you want. But you must do exactly that—name the beneficiary by filling out a beneficiary designation form that states your wishes. Generally, your financial institution will require you to complete a beneficiary designation form when you first open an IRA. But in the case of an employer’s plan, you might have to request a form from your plan administrator.
Many employer plans name a surviving spouse as a default beneficiary in the event a worker fails to designate a beneficiary in writing. However, unmarried partners will not be default beneficiaries, so it is important that you complete a form, then keep a copy of the form in your files and give one to the plan administrator.
Naming a beneficiary of your retirement plan accomplishes several things. First, it ensures that the assets are distributed to the people you intend. Second, designating a beneficiary might protect the retirement plan from probate. (In many states, retirement plan assets are not subject to probate, provided there is a clear designation of beneficiary. Without such a designation, assets might be forced through probate to identify the appropriate heir.) Third, when you name a beneficiary of your retirement plan, the individual or individuals who inherit the plan will have more control over how quickly the assets are distributed, potentially saving your beneficiary a bundle in taxes.
Bear in mind that naming a beneficiary is not an irrevocable action. You may change your beneficiary at any time by completing a new beneficiary designation form.
Some people make the mistake of failing to name a beneficiary or simply naming “my estate,” believing their will should take care of everything. But in the case of a retirement plan or IRA, it is the beneficiary designation form, not the will, that governs what happens to the assets. So, for example, if your beneficiary designation names your brother as beneficiary of your IRA, but in your will you indicate that you want your IRA assets to go to your partner, the IRA assets will go to your brother, because his name is on the beneficiary designation form. Similarly, if you fail to name a beneficiary on the beneficiary designation form, you are deemed not to have named a beneficiary of the plan, even if you try to leave the retirement funds to someone in your will.
Married couples enjoy some advantages over unmarried couples when it comes to inherited retirement plans. For example, and perhaps most important, a spouse who inherits a retirement plan is permitted to roll it over into a retirement plan of his or her own. Having done so, the spouse can then treat those assets as if they had always been part of his or her own retirement account.
In comparison, the surviving partner in an unmarried couple cannot roll over his or her deceased partner’s retirement assets into the survivor’s retirement plan. If the survivor attempts to make such a transaction, the assets would immediately be subject to tax and penalties.
The picture is not completely bleak, however. If you inherit an IRA from your partner, you are not required to take all the money out immediately and pay taxes on it (although you may if you wish). Instead, you are permitted to spread distributions over your life expectancy, thereby reducing the tax burden.
Thanks to a new law that took effect in 2007, you can achieve much the same result if you inherit your partner’s interest in an employer’s retirement plan. You may roll over your partner’s retirement plan assets into an IRA and then take distributions over your life expectancy. For this to work, you must satisfy the following conditions:
• You must have the retirement plan assets transferred to a new IRA, not an existing one.
• The new IRA must be in your partner’s name, not your name. (This allows the IRS to distinguish between IRAs inherited by a nonspouse and those belonging to the original owner or a spouse; different distribution rules apply so the IRS needs to know which is which.)
• The transfer must take place as a trustee-to-trustee transfer, meaning you can’t take the money out and then put it into a new IRA—it has to be rolled over directly from one savings vehicle into the other.
• The employer plan must allow the rollover.
There’s more good news. Even if the plan provides that your partner’s interest must be paid out within five years (the five-year rule), you can void that requirement by taking your first required distribution from the employer plan on or before December 31 of the year after your partner’s death and rolling over the balance into a new IRA in your partner’s name—usually it will be titled to include your name as well; for example, it might say: “John Doe (deceased) IRA, for benefit of Jane Doe.” If you roll over the assets into the new IRA in the year of death, you may roll over the entire amount and take the first required distribution the following year. But again, for all of this to work, the employer’s retirement plan has to permit the rollover to an IRA.
For more information about inheritance and taking money out of retirement plans and IRAs, see IRAs, 401(k)s & Other Retirement Plans: Taking Your Money Out, by Twila Slesnick (Nolo).
If you and your former spouse agree on custody, the court will normally ratify your agreement without considering the details of how you lead your life. A judge won’t know (or necessarily ask) whether one of you is living with another person unless your ex brings it to the judge’s attention.
If you and your spouse are battling over custody, however, the traditional advice is to not live with a new partner and to be discreet in your sexual activity, at least until the court makes a decision. This advice applies to both fault and no-fault divorces, as a parent’s living arrangement is always admissible in a custody dispute on the theory that a court needs as much information as possible to determine “the best interests of the child.”
We use the word “traditional” to describe the “no sex, no living with anyone” advice. This is because many states now have more relaxed legal attitudes toward living together. While we can’t say that most judges are enthusiastic about granting custody to a parent who is part of an unmarried couple, judges will not necessarily deny custody to a parent solely because the parent lives with someone else, especially when the new relationship is stable and nurturing. Therefore, the decision to live or not live with someone (other than a platonic roommate) while fighting over custody should be decided situation by situation, state by state. Especially if your former spouse is likely to make an issue of it, you should consult with a family law attorney to find out about local practices and prejudices. For a list of local attorneys, see Nolo’s Lawyer Directory.
There are two types of custody in most states—physical and legal. Physical custody is the right to have the child live with you. Legal custody is the right to make important decisions about the child’s upbringing—for example, regarding schooling and medical care.
Custody should not be confused with child support. Every parent has an obligation to support his or her children. (For more on the subject, see How Living Together Affects Child Support for Children From a Prior Marriage.) When one parent has physical custody and the other has visitation rights, the parent with visitation rights is usually ordered to pay some child support to the other parent, who is usually deemed to be meeting his or her obligations through the custody itself.
Custody may also be sole or joint. Joint legal custody means that the parents plan jointly for their children’s future, as they did before the divorce. Joint physical custody is typically worked out by the parents, taking into consideration things like the parents’ and children’s schedules and desires, the quality of schools, relationships with friends, and so on. Joint custody doesn’t mean that the children must spend six months of each year or half of every week with each parent. In fact, in many states, a judge may award joint legal custody at the same time one parent is named as the primary caretaker of the child and one house as the primary home for the child.
For parents who communicate well and are equally dedicated to raising their children, joint custody can be an ideal situation. In fact, in some states, courts are required to order joint custody unless there is some unusual circumstance. By balancing the power and decision making, both parents are more likely to provide financial support for and maintain close relationships with their children. A potential drawback to joint custody is the possibility that arguments will drag on forever because neither parent has final say. However, family counseling (sometimes called “divorce” or “separation” counseling) can go a long way towards avoiding or working through such problems.
In all states, child custody and visitation issues are decided according to “the best interests of the child.” This means that the judge who hears the case will consider all evidence before deciding who will provide the better home. Although mothers are more often granted physical custody than are fathers, particularly for young children, there is no longer an automatic preference in favor of women. Today, many men win physical custody of their children.
Frequently asked questions about custody and visitation include:
• If I live with a man, can my children be taken from me?
• If my husband is an alcoholic (or a recently recovering alcoholic), will he be able to get custody of (or visitation with) the children?
• I was once arrested for possession of marijuana; does this mean I can’t get custody?
• My income comes from Social Security disability and other public programs, while my husband has a well-paying job. Does this mean he’ll get custody of the kids?
The answer to all of those questions is, “It depends.” The law doesn’t say that adultery, smoking marijuana, or even being involved in antisocial conduct means you can’t win, or will lose, custody. In addition, the fact that one parent’s income is much larger than the other’s isn’t necessarily a reason the court will use to award the more affluent parent custody. Many factors—not just whether or not you’re living with someone else—are related to what is in a child’s best interest. The court’s decision will normally favor the parent who will best maintain stability in the child’s life. The way each parent lives can be an important factor when a court decides custody issues. In any given case, the judge may consider one person’s lifestyle to be more in the best interest of the child than the other’s.
In a few states, a judge can use a parent’s cohabitation to deny custody. For example, an Arkansas court stated “a mother’s ongoing relationship was immoral, failed to set a proper example for the children, and resulted in harm to the children.” (Nix v. Nix, 706 S.W. 2d 403 (Ark. 1986).) Courts in a few other states have similarly disapproved of cohabitation and have forced a change in custody, especially where the children were aware of their custodial parents’ intimate conduct.
In general, however, the bottom line is that the judge, as a human being, will apply his or her own standards and prejudices when deciding which parent gets custody. Some judges don’t like unmarried persons living together, even though society no longer considers living together the “no-no” it was 30 years ago.
Now suppose you have been divorced for some time and have custody of your children. You want to move in with a new partner, but want to be sure this won’t give your former spouse legal grounds to challenge your custody of your children.
The question of child custody can always be reexamined by the court. If a judge finds that it’s in the best interest of your children to change the custody of your kids to the other parent, then the judge can order this. State law varies as to whether a judge can consider your living with someone to be a negative factor in deciding whether or not custody arrangements should be modified.
In many places, fighting over custody is no longer as simple as going into court with your arguments at the ready. Now, parents with custody disputes usually must attend court-ordered mediation sessions to try to work out a parenting plan, before they’ll be allowed to see a judge. In some places, the mediator will make a report to the judge with a recommendation of how custody should be decided. In others, the mediator simply works with the parents, but doesn’t report to the court afterwards.
Some courts may also order an evaluation of the family, which might be performed by a social worker employed by the county or by a private social worker or therapist with training in child custody evaluation. A child custody evaluation will include interviews with both parents and the children, background checks, and sometimes psychological testing.
Once all the mediation and evaluations are completed, you’ll then have your day in court. The judge isn’t compelled to follow the recommendations of the mediator or evaluator, but as a practical matter most do. If the social worker or mediator recommends that you get custody, you’ve won more than half the battle. If not, you’re at a serious disadvantage, but you can still proceed to the trial, and you may ask the social worker or mediator to come to court to be cross-examined about the report. This is especially important if the report contains factual inaccuracies.
At the trial, the judge may ask your children where they want to live. Some judges ask only older children; other judges never ask any children. Most judges will pay little—if any—attention to the opinion of a child under seven, but will probably respect the wishes of a teenager if the chosen parent is otherwise suitable. Judges also tend to keep brothers and sisters together unless there is a strong reason not to.
Keep in mind that a judge has the power to deny custody to both parents. During a divorce proceeding, a judge need not award custody of the children to either the mother or the father if he or she finds them unfit. Instead, the judge can award custody to a relative, a friend, or even the local juvenile court.
Even though you may never want to speak to your former spouse or partner again, it is vital for you both to sit down and decide how you will continue to raise your children. Because the two of you know your children best, forming a parenting plan or custody agreement together makes the most sense. Also, it will save you from the risk of a drawn-out court battle.
A very basic custody agreement, Sample Cooperative Custody Agreement, is included here. It is common for custody agreements to be much more detailed, covering when parents will spend time with the children, how to handle holidays, vacations, and birthdays, the role of each parent in the children’s education, health care and more. This agreement may serve as a placeholder while you work out the details of a more thorough one.
While some parents can make agreements on their own without outside help, many turn to mediators or family law counselors to help them resolve one or more problem areas.
Negotiating a custody agreement that is fair to both you and your former spouse makes great sense. While it may seem impossible, try to put aside your anger and hostility to create a parenting plan that puts your children’s best interests first. Choose a setting that is neutral and prepare yourself by writing a list of all the important factors you want to discuss regarding the custody of your children. Obviously, this will include your children’s living arrangements, education, medical care, and emotional needs. Listen to all the requests your ex makes and be willing to compromise. If you strongly disagree on a particular issue, set it aside and concentrate on the things you can work out. Often, if a spirit of compromise develops over the course of your negotiations, it will extend to solving even your most difficult problems.
If you and the other parent can’t arrive at a good agreement yourselves, your next step is to enlist the help of a neutral third party who is skilled in the area of child custody. Family mediators are trained to handle difficult custody and visitation issues. While a mediator will not make a decision for you, they are adept at guiding parents to arriving at their own plan. Many states mandate the use of a mediator to try to solve custody disputes and some even provide mediators at low cost.
Nolo’s Essential Guide to Child Custody and Support, by Emily Doskow, provides a road map to the subject of custody and support, including specifics about each state’s laws, the factors courts consider when ruling on custody arrangements, what happens when one parent wants to move away with the children, and more.
Also, for more information on child custody in the Divorce and Family Law section of this site
]]>One option for wealthy couples (married or not) to avoid or reduce estate taxes is to leave property to each other in a bypass or life estate trust (commonly called an AB trust), rather than leaving it outright to each other, For details, see the article Tax-Saving AB Trusts on this site.
If you or your partner has children from prior marriages or relationships, special issues may emerge when it comes to estate planning. You may feel conflicted about how to leave your property in a way that’s fair to all your loved ones. On one hand, if you die first, your surviving partner may need additional income or the use of your property to live comfortably. On the other hand, you probably want to leave something to your children from a former relationship. Things get even more complicated if the children themselves feel entitled to inherit your property and become resentful if they believe they will lose it to your partner. If your current partner and your children don’t get along, the situation gets even dicier.
Fortunately, there is an estate planning solution to deal (at least partially) with the problem of possible conflicts over property: a property control trust. This lets the surviving partner use all or just some of the trust property, such as a house (or income from that property) for the rest of his or her life. When the survivor dies, the property goes to the children. A property control trust restricts the rights of the surviving partner to use the property placed in the trust. The surviving partner is usually called the “life beneficiary” of the trust. His or her rights to use trust property, receive trust income, or spend trust principal are as limited as the person who establishes the trust (the grantor) determines they should be. Restricting the surviving partner’s rights protects the trust property, so that much of it remains when the surviving partner dies. Then, the trust property goes outright to the grantor’s children from a prior marriage or to other beneficiaries the grantor named.
You’ll need a lawyer to draw up a property control trust. Check Nolo's Lawyer Directory to find an experienced local estate planning attorney to help you draw up a property control trust and handle other special estate planning needs.
Federal and state estate tax rules have been in great flux, especially in recent years. Still, the vast majority of estates don't pay either state or federal estate tax, and that's not likely to change.
For detailed and up-to-date information on federal and state estate taxes, including state inheritance taxes, gift taxes, and more, see the Estate and Inheritance Taxes articles in the Wills and Estate Planning section of the Nolo site. If you have a large estate, consult an estate planning expert.
Married or not, one thing never changes—when you split up, it’s vital for your kids’ current and future well-being that you try to reach a compromise about issues of custody, visitation, and support. Doing this in a constructive, humane way may be a great challenge. But, your ability to get along civilly—if not cheerfully—is the biggest gift you can give your children. Sometimes this can be accomplished through open discussions between the two of you. In other situations it will require counseling, therapy, or mediation. No matter how scary or messy breaking up can sometimes be, as long as you are each determined to avoid a contested court battle and willing to put your egos aside in an effort to work together in the best interests of your child, you should be able to work out even the toughest parenting issues.
If you can’t reach an early compromise on the issues of custody (who has legal authority over the child and where does the child live), visitation (how often and under what conditions does the noncustodial parent spend time with the child), and child support (whether the noncustodial parent contributes anything to the costs of raising the child), you will have to submit your dispute to the court system.
While the specific rules for child custody and visitation differ from state to state, here is a general overview. For more specific details, see the articles in the Child Custody, Child Support & Visitation section of the Divorce & Family Law area of Nolo's website.
If both of you are legal parents of the child—either because you are both biological parents, because you have jointly adopted your child, or because the nonbiological parent has been able to obtain a legally valid stepparent or second-parent adoption—your child-related disputes will normally be handled in the same way as if you were a divorcing married couple. You may be required to attend mediation sessions or submit to an investigative process with county personnel. After listening to a county social worker’s report about each of your parenting abilities and home situations, the local family court judge will have great discretion to make child custody and visitation decisions. The legal standard the judge will always follow is the “best interests of the child.” In most states you can propose your own custody and visitation arrangements. If the judge believes these to be sensible (and especially if you both agree to follow them), the court will often approve your proposal. But if the judge doesn’t agree with your proposal, the judge can substitute a modified or even completely different arrangement.
In many states the court will order that both legal parents retain custody (sometimes called joint, or shared, legal custody). This means each parent has equal authority over the key decisions in the child’s life (such as education and medical care), as well as a legal obligation to care for and support the child. Physical custody (where the child lives) is typically shared, with the child spending some days or weeks with one parent and living with the other parent at other times. In other states the court will award both parents “joint legal custody,” but stipulate that one parent will be the “primary physical custodian.” In still other states, it is far more common for the court to award one parent “primary physical custody,” while the other is given “reasonable rights of visitation.” But no matter what the legal description, the usual practical result is that the parent who isn’t the primary caretaker during the school week is granted liberal rights to spend weekends or other time with the child (called visitation) unless there is a strong reason why this would be detrimental to the child.
For more details on child custody, see the article How Living Together Affects Custody of Children on this site.
Like custody, you and your former partner can make visitation arrangements voluntarily. However, if your efforts are frustrated by the actions of the other parent (or someone else with physical custody of the child), you will have to file a court action and request that a judge order visitation.
In every state, both legal parents are required to support their children, regardless of whether they were married when the child was born. When it comes to supporting a child financially, if parental incomes are unequal—or if one parent is shouldering most of the costs of taking care of the child—the family law court will order the noncustodial parent to contribute a specified sum of money to the costs of childrearing (called child support), often by referring to published guidelines establishing minimum levels of support. The family law court will retain the right to modify this amount should parental incomes or the needs of the children change.
The amount of child support awarded will depend on how much each parent makes and spends on housing, health care, and other necessary child-related expenses, including dental bills and private school tuition. The monthly amount can vary widely, and each state has its own child support guidelines that are set by statute. We encourage you to learn what the court would likely order in your particular situation, so that you have an idea of where to start in the negotiation process.
If support isn’t paid voluntarily, the parent with custody or someone acting on the child’s behalf (such as the welfare department) can sue the noncustodial parent to obtain a court order setting the amount of child support the noncustodial parent must pay. If the father doesn’t pay, but has the ability to do so, the district attorney can prosecute him under criminal laws. County jails are full of fathers who don’t take their support obligations seriously.
For more details on legal requirements regarding child support, see the article How Living Together Affects Child Support Payments on this site.
Where only one person in an unmarried couple is the legal parent (for example, you came along after your partner’s child was born and did not adopt the child), the legal situation is very different. In most states, the nonlegal parent has few legal rights, and in a few states, none at all. This is usually true even if the nonlegal parent has helped raise the child for many years and is a primary giver of care and emotional support.
Fortunately, an increasing number of states are beginning to recognize the right of nonlegal parents to visit the children they have helped raise; Ohio, Virginia, and Wyoming allow “any interested person” to bring an action for visitation, and Arizona allows visitation to persons who act as parents to a child. A few courts have even awarded custody to the nonlegal parent, especially where that person was the primary caregiver. And when the natural parent is unfit or deceased, it is more likely for courts to give the nonlegal parent a major child-rearing role (and sometimes to prefer the nonlegal parent to grandparents or other blood relatives).
Because the law does not fully recognize their relationship with the child, nonlegal parents rarely have any financial obligations to their partner’s children. And where a nonlegal parent offers to help support the children in exchange for visitation or custody rights, most courts say no.
In some states, second-parent adoption may be available even if you and your partner are not living together any more. If the legal parent is willing to formalize the nonlegal parent’s relationship with the child, consult a lawyer about whether a second-parent adoption is a possibility. If it is, you can incorporate a paragraph to the effect that you intend to complete a second-parent adoption into the sample parenting agreement included here.
If you are being denied the right to continue actively participating in the life of a child you have helped raise, your first step should be to attempt to work with the legal parent to create a practical arrangement that meets the child’s needs as well as yours. Failing this, you will need to consider whether it makes sense to attempt to achieve your goals by going to court. But before you do, you’ll want to do the necessary legal research in your state or consult a family law attorney to see if your state allows you to present a claim for visitation or partial custody if you are not a legal parent, and what procedures you must follow.
If you are the legal parent and you are facing a custody and visitation challenge from your former partner, make your children’s emotional needs—not yours—the highest priority. If your children want to remain in close contact with your ex (who they may have lived with for many years), put their wishes before your own. Of course, if you truly believe that your former partner’s interaction with your kids will be seriously harmful, by all means resist his or her claims for custody or visitation.
Because unmarried couples don’t get divorces, judges and lawyers aren’t necessarily involved in the child-raising issues. Unmarried couples can make their own parenting agreements covering child support, custody, and visitation issues, either on their own or with the help of a mediator or family law counselor. If it’s possible, this is the best approach. Be mindful, however, that if the physical or financial well-being of your child is at risk, most courts will not consider themselves bound by your agreement, and may order modifications or additional obligations. Also, if court proceedings are likely, you’re unclear about your rights, or there’s conflict between you and the other parent over key issues involving your child, consult an experienced family law attorney.
It’s a good idea to approach your agreement with a spirit of flexibility and openness. Also, no custody, support, or visitation agreement—even one ordered by a judge—is ever permanently binding. An amount of child support that seems fair and adequate today may not be enough tomorrow. Custody with one parent may work brilliantly for a year and then sour. Your agreement must be a statement of needs and expectations that lays a solid foundation for the changes and additions that will surely come.
Be sure you both date and sign any agreement you reach and each keep a copy. It’s a good idea to have your signed agreement notarized if you anticipate any future need (in court or arbitration) to prove that the signatures on the agreement are not forged.
]]>All couples benefit from clearly agreeing who will pay for the rent, car installments, or groceries. When you live together, you must also decide whether to pool your money and the property you buy with that money, or keep it all separate. This section provides an overview of an unmarried couple’s rights and responsibilities when it comes to debt and credit. Once you understand these, you’ll be better prepared to write out your agreement about sharing money and property—equally, partially, or not at all.
Unlike marriage, living together does not make you responsible for your partner’s debts. Should your partner declare bankruptcy or face other debt problems, you won’t lose your property as long as you’ve kept it separate. Your wages cannot be attached and your property cannot be taken to pay for your partner’s overdue bills or debts, and your credit rating will not be negatively affected by your partner’s financial problems.
But this financial independence may suddenly disappear if:
• you sign a joint purchase agreement
• you cosign a loan with your partner obligating yourself to pay the debt if the person taking out the loan fails to do so
• your partner’s debt is charged to a shared or joint account, or
• you register as domestic partners, in some situations.
There are many different ways to pool money—not at all, completely, or on a limited basis. It’s up to you. You should have no problem opening a joint checking or banking account under both your names. In general, joint accounts are sensible if you limit their purpose (for example, for specific household expenses or for travel) and keep adequate records. Many unmarried couples have peacefully maintained joint bank accounts for years.
But a joint account is still a risk. Each person has the right to spend all the money. Both partners are responsible for all activity involving the account. You’re equally liable for bounced checks, overdrafts, and all the rest. This can cause big problems if one of you is a habitual overspender. Record keeping can pose another problem with joint accounts. It’s often difficult to keep track of how much money is in the account when two people are writing checks and making withdrawals. You’ll have to set up a reliable method of tracking these things and then resolve to stick to it.
If you want to do everything possible to keep property ownership separate, it’s best not to open joint accounts. If you do, sign an Agreement to Keep Property Separate.
As with bank accounts, you may want to keep your credit accounts separate and each deal with creditors on your own terms. In that way you don’t have to worry about the other person’s purchases and any potential damage to your credit rating. Nevertheless, many unmarried couples open joint credit card accounts in which both partners are authorized by the credit lender to charge up to a credit limit.You can open a joint account for broad purposes, such as paying household expenses or to fund a distinct project—for example, remodeling a kitchen, saving for a vacation, or making a joint investment. Or you may use a joint card solely for household purchases, and use your individual cards for all other expenditures.
It’s fairly easy to put two names on a credit card. You simply fill out a joint credit card application. Many companies have changed the blanks from “spouse” to “co-applicant” or “co-applicant/spouse.” If the application form only says “spouse,” cross off the word “spouse” and write in “co-applicant.” Don’t claim to be a spouse—that term has a specific legal meaning (having to do with liability and responsibility), and lying on a credit application is fraud.
As long as one of you has sufficient income or savings to be considered a good credit risk—that is, you appear to be able to pay the bills—you’ll probably get the credit card. If one of you has a poor credit history, you may be denied a joint card, even if the other’s credit is perfect. The partner with better credit may have to reapply in his or her name only.
If you’ve lived together for a long time or have had joint credit card or bank accounts, it’s possible that your credit report has become intertwined with that of your partner or has information on it that belongs only to him or her, and not to you. This is usually not to your advantage, especially if your partner has bad credit.
Your credit report contains your credit history. Credit reports are maintained by credit bureaus—companies that collect information related to your creditworthiness, including your bank and credit card accounts, loans (such as mortgages, car loans, and student loans), payment history on those loans and accounts, delinquencies on accounts, bankruptcy filings, criminal arrests and convictions, current and previous employers, lawsuits and judgments against you, and tax or other liens. Creditors, landlords, employers, banks, and collection agencies can request and review your credit report.
Unfortunately, many credit reports contain inaccurate or outdated information. If you have some joint accounts with your partner or have been living together for a long time, the credit bureaus may have included information on your credit record about your partner’s separate accounts. Information about separate accounts should only appear on the report of the partner responsible for that account. Information about joint accounts should appear on both reports.
Each partner should request a copy of his or her credit report and review it for errors or outdated information. It’s a good idea to do this every year. Contact one of the three major national credit bureaus to get your report.
The federal Fair Credit Reporting Act (FCRA) now requires each major national credit bureau—Equifax, Experian, and Trans Union—to provide you one free copy of your credit report each year. You can request your free report by phone (877-322-8228) or online at annualcreditreport.com.
You may be entitled to additional free copies of your credit report in certain circumstances, such as if you believe that your credit file contains errors due to fraud, such as identity theft.
If you find errors on your report (for example, a car loan for which your partner is the only signatory) or outdated information, notify the credit bureau in writing. The bureau is required by law to correct your report. If the bureau investigates the item and disagrees with you, at the very least you can include a brief explanation on your report about the disputed item.
The Personal Finance section of the Nolo website includes extensive articles on credit and credit repair. Another useful resource is Credit Repair, by Robin Leonard and Margaret Reiter (Nolo).
Any unmarried couple that plans to jointly own a house or other real property should prepare a written contract. When it comes to an investment of this size, it’s just plain nuts to try and wing it with pillow talk. If, later, your relationship becomes rocky, your memories of the details of a spoken agreement may differ. Written contracts, particularly over something so expensive and important as a house, are the only way to protect yourself should you separate from your partner. Even if you are equal owners, having an agreement in place can make a dissolution far easier to manage.
Here are the basic terms to include in a contract for unmarried couples who want to share equal ownership of a house (see the "Sample Contract for Equal Ownership of a House," in Nolo's book, Living Together: A Legal Guide for Unmarried Couples, for details):
How you are taking title or sharing ownership . You will typically do this as tenants in common or joint tenants (see Clause 2 of the sample contract).
How you are splitting costs (down payment, purchase price, closing costs, taxes, and all other housing costs, including maintenance and repair bills). Clause 3 of the sample agreement assumes you will share costs equally, but you can work out whatever arrangement works best for you. To avoid disputes over money spent on home improvements, we recommend that improvements over a set dollar amount (such as $500—the amount is up to you) require mutual consent, with each partner paying half.
The effect of a breakup on home ownership. Clause 4 of the sample contract recognizes three possibilities: (1) One of you wants to keep the house and the other doesn’t. (2) Both of you want the house. (3) Neither of you wants the house.
Most likely, only one of you will want to stay or both of you will choose to move on. But if both of you want the house, problems are likely to develop. Clause 4 anticipates this possibility by providing several choices for deciding who gets the house should you split up and both partners want it. For example, you may want your contract to automatically give one of you the first right to buy out the other partner’s share in the house at fair market value within 90 days. Or you may opt for a coin toss to decide who gets to buy out the other. (The winner of a coin toss is entitled to buy out the loser’s share at fair market value within 90 days.) You may also come up with your own approach to decide the question of who owns the house if you both want it—for example, you could provide for the decision to be made with the help of a mediator.
If one partner does buy out the other, it is extremely important to change title to the home to reflect the new ownership arrangement. Clause 4 specifies that the buying partner must execute the appropriate documents to do this. In addition, the partner selling a share of the home should ensure that his or her name is taken off the home loan. Otherwise, the selling partner will have no interest in the home, but will still be on the hook for the mortgage. (Usually this will require the buying partner to refinance the home and obtain a new loan in his or her name only.) Clause 4 requires this of the partner buying the home. If the buying partner cannot qualify for a new loan, Clause 4 states that the home must be sold to a third party.
See the article Who Gets the House When an Unmarried Couple Splits Up? on this site for more on this subject.
How to determine the market value of the house should one of you need to buy out the other. See Clause 5 of the sample contract for details.
What happens to the property if one of you dies, or one of you is unable to pay your share of the expenses, such as monthly mortgage payments. See Clauses 6 and 7 of the sample contract for sample language.
The Sample Contract for Equal Ownership of a House also specifies that your agreement is binding on your heirs and estates (Clause 8) and provides for mediation should a dispute arise (Clause 9).
What if you and your unmarried partner wish to own a house equally, but only one can come up with all the cash needed for the down payment? One common approach is for you to take title to the house as equal owners (either as joint tenants or tenants in common) with one of you lending the other their one-half of the down payment, to be repaid on an agreed-upon schedule. To do this, you would need to edit the sample contract (specifically Clause 3 which covers the down payment) and prepare a separate promissory note setting out the exact terms of the loan. You will also need to edit Clause 4 regarding who gets the house should you split up. For details on preparing a promissory note, see Nolo’s Personal Finance section.
Another option is for the person who contributes less of the down payment to fix the place up in exchange for equal ownership in the home. You would need to edit the sample contract included here to reflect your agreement.
Finally, you may decide that you do not want to share equally in ownership of the house and prepare your agreement accordingly.
After your contract is written, the safest legal approach is to record it at your County Recorder’s office along with the deed. To do this in most states, you’ll need to get your signatures notarized. Notarization means that a person authorized as a notary public certifies in writing that you’re the person you claim to be. If you want to have your contract notarized, you and your partner must appear in front of the notary and show proof of your identity. The notary will watch each of you sign the document and then will complete an acknowledgment, including a notarial seal. You can often find a notary at a bank, lawyer’s office, real estate office, or title insurance office, or at private post office businesses. Most charge under $20 to notarize a document.
Some couples, however, shouldn’t or don’t want to record their agreement—either for privacy reasons or because they don’t want to bother recording every amendment they make in the future. And, some counties won’t allow such documents to be recorded, though they may allow you to record a one-page “Memorandum” or “Abstract” of your agreement, summarizing the basic terms.
There’s no clear right or wrong here. Recordation isn’t necessary to make the agreement legally valid. Just make sure you have a safe place to keep the agreement, like a safe deposit box or other secure location.
Basically, an agreement between unmarried couples will not be enforceable after marriage unless it was created shortly before the marriage in the anticipation of marriage. Instead, your state’s marital property laws will apply.
In many circumstances, you will want to an experienced real estate lawyer’s help in preparing a house co-ownership contract. See Nolo’s Lawyer Directory for the names of local attorneys who can help.
]]>The legal effect of Lawrence v. Texas was to render all sodomy laws unconstitutional, including those directed at heterosexual couples. Of course, the laws of the states that continue to prohibit sodomy will stay on the books until they are challenged in court or repealed by the Legislature. If you live in one of those states and are prosecuted for sodomy, however, you should be able to get your case dismissed simply by raising a challenge under Lawrence.
Although it does not address such laws directly, Lawrence also calls into question all restrictions on consensual adult sexual activity, such as laws prohibiting cohabitation and fornication. If you and your partner are over 18 and neither of you is married to someone else, you can consider yourself fairly safe from criminal prosecution for your private, consensual sexual activity, even if your state still has laws on the books relating to cohabitation and fornication.
Adultery, however, is still illegal in many states. These laws may not be affected by the Lawrence v. Texas decision, because of the special public policies involved (for example, support of marriage and protection of children). Adultery laws may still find their way into divorce, alimony, and custody proceedings, or they may be invoked in cases involving property disputes.
Fornication: Voluntary sexual intercourse between unmarried people of the opposite sex. If one of the people is still married, this is generally considered to be adultery, not fornication. In many states, adultery is technically a crime, but rarely is anyone prosecuted for it.
Cohabitation: Two people living together in an intimate sexual relationship, without being married. Some courts, especially those in states where fornication is illegal, describe a cohabitation relationship as meretricious, meaning “of an unlawful sexual nature.”
Sodomy: Generally refers to oral or anal sex. Many states call it an unnatural act or a “crime against nature.” Some states prohibit all sodomy, while others prohibit only specific acts.
More Information on Sex LawsTo find out more about laws (and penalties) regarding cohabitation, fornication, or adultery, including laws that may affect alimony or division of marital property if you’re living with someone while getting a divorce, check your state laws. Another useful resource is the National Gay and Lesbian Task Force (NGLTF), which keeps track of sex laws affecting both heterosexuals and homosexuals. The American Civil Liberties Union also monitors sex laws.
Unmarried couples that live together are often at a disadvantage when it comes to Social Security benefits—especially if one partner stays at home caring for children or running the household.
Typically, you qualify for Social Security benefits based on your own earnings record. If you don’t work at a job that requires payment of Social Security tax, you don’t earn credit towards Social Security benefits. But married couples (including couples who have a common law marriage) get a benefit—spouses are eligible for certain Social Security benefits based on the other spouse’s earnings record. These are called dependents’ benefits (which you get if your spouse qualifies for retirement or disability benefits) and survivors’ benefits (which you get if your deceased spouse or ex-spouse qualified for retirement or disability benefits). So, for example, if a husband stays at home and takes care of the kids for a number of years, he may still be able to collect Social Security benefits based on his wife’s earnings record.
Adults who live together, but are not married, are not eligible for their partner’s dependents’ or survivors’ benefits although their children are dependents of both. This presents an obvious disadvantage when one partner in a living together arrangement works outside the home and the other works in the home caring for kids or taking care of the household.
A stay-at-home partner could earn Social Security credits, however, if the other partner employed him or her to take care of the home and children. The “employer partner” would pay wages to the stay-at-home partner and pay Social Security tax on the stay-at-home partner’s behalf. Both partners would have to comply with other requirements. For example, the stay-at-home partner would have to pay state and federal income tax on the wages. And in many states, the “employer partner” would also have to pay disability insurance and other types of insurance or taxes.
Also, living with someone doesn’t end Social Security benefits derived from a former marriage. If your spouse has died and you are receiving survivor’s benefits or if you are divorced, you can get benefits on your ex-spouse’s Social Security account if your marriage lasted at least ten years and, in some cases, if you have been divorced for at least two years (it makes no difference whether a former spouse has remarried or you are living with someone). Similarly, if you qualify for benefits as a divorced spouse and your ex has died, you can receive survivor’s benefits as early as age 60 (50 if you’re disabled).
For advice on Social Security rules and benefits, contact a local office of the Social Security Administration or check the agency's website. For a clear explanation of Social Security benefits—what’s available and how to claim them—see Social Security, Medicare & Government Pensions: Get the Most Out of Your Retirement & Medical Benefits, by Joseph Matthews with Dorothy Matthews Berman (Nolo).
]]>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.
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:
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.
Children of unmarried parents have most of the same legal rights as children of married parents.
You can leave your property to anyone you want in a will, trust, joint ownership device, or other estate planning device. (See the Estate Planning section of the Nolo website for complete details.) In short, you don’t have to sign a paternity statement or raise a child to leave the child property. But to be sure your child is provided for after your death, you do need to affirmatively leave property in your will or by use of a trust. This is because if a parent of an illegitimate child dies without a will, most states do not protect the child’s right of inheritance as strongly as if the child were born to married parents or otherwise legally legitimated. For example, in some states, in the absence of a will or trust, the child can fully inherit from the mother but not from an unmarried father. Even in states that allow illegitimate children to inherit from a father in the absence of a will, the time in which the child can make a claim against the father’s estate may be limited.
In the case of Trimble v. Gordon, 430 U.S. 762 (1977), the Supreme Court made it clear that a father’s signing a paternity statement will normally be adequate to fully protect the inheritance rights of children born out of wedlock if there’s no will. If your state rules allow a father to acknowledge paternity for the purpose of inheritance in a way other than a paternity statement, that will also be sufficient. For example, in some states, in the absence of a will, a child can inherit if the father admitted paternity prior to his death or if paternity was determined by a court. But obviously, a child’s legal right to go to court to try and claim a share of an estate is not nearly as advantageous as being left property under the terms of a will. Or to put this point bluntly, if you want a child to inherit regardless of the child’s legitimacy under your state’s laws, accomplish this by leaving the child property in your will or other estate planning device.See the article Wills and Estate Planning for Unmarried Couples on this website, which explains how and why unmarried couples should prepare to protect each other and their children.
If a parent becomes disabled or dies, the person’s biological or legal child may be entitled to receive income, such as from Social Security, government or pension benefits, or possibly a private insurance company (life insurance). In the past, benefits derived through the father were often unavailable to or reduced for “illegitimate” children—children born “out of wedlock.” For example, Social Security regulations used to grant more benefits to the legitimate child of a deceased, retired, or disabled father than to an illegitimate child.
However, the U.S. Supreme Court has long since ruled that treating children differently on this basis is unconstitutional. It no longer makes any difference whether a child is “legitimate” or “illegitimate” for purposes of receiving Social Security and similar government benefits.
When it comes to private benefits, children of unmarried couples are similarly protected in most instances. For example, if you name your children as the beneficiaries of a life insurance policy, they will receive the policy proceeds if you die while the policy is in effect, whether you’re married to their other parent or not.
Even though the legal rights of children born outside of marriage have greatly improved, that’s not a reason for a father to fail to take steps to further protect them. The best way to do this is to sign a paternity or parenthood statement right away when your child is born. If you die, and you have failed to sign such a statement or otherwise clearly form a parent-child relationship with your child, Social Security or other federal, state, or private benefits may be denied your child because there’s no proof that you were the father.
]]>Adoption is primarily governed by state law. As a general rule, any adult who is found to be a “fit parent” may adopt a child as long as the child is free for adoption, meaning that appropriate consents have been given. For adoptions of children (other than second parent (see below) and stepparent adoption), that means that both legal parents have had their parental rights terminated or have consented to the child’s adoption.
There is only one state that prohibits unmarried people from adopting: Utah. (Utah Code § 78B-6-117 (2022).) For all other states, the question is whether an unmarried couple can jointly adopt a child.
A few states’ laws explicitly allow unmarried couples to jointly adopt a child. For example, in New York, “unmarried intimate partners” can jointly adopt. (N.Y. Dom. Rel. Law § 110 (2022).) And in Delaware, state law recognizes the right of a couple who cohabitates to jointly adopt. (Del. Code tit. 13, § 903(2)(d) (2022).) In some other states, such as Washington, the courts have interpreted statutory law to allow joint adoption by unmarried couples.
When an unmarried couple jointly adopts a child, both parents are legal parents. This means both have equal legal responsibilities to raise and support the child. If the couple separates, each has the right to petition a court for custody of (or visitation with) the child, and each has an obligation to provide child support.
A majority of states, though, allow joint adoption only by married couples. This doesn’t rule out the possibility that both people in a committed relationship won’t ultimately be able to adopt the same child, though. Rather, it means that in many cases, one partner might have to adopt the child first, and then the other partner might be able to later petition to adopt the child as a “second parent.”
If your state doesn’t allow unmarried couples to jointly adopt a child, “second parent” adoption might be an option. (This process is called “co-parent adoption” in some states.) After one partner has adopted the child (the “first” parent), the other can petition to adopt as a second parent. The second parent adoption does not terminate the first parent’s parental rights, and, once the adoption is finalized, the second parent will have parental status equal to the first parent.
Not all states allow second parent adoption. According to Family Equality, 20 states allow unmarried couples to petition for second parent adoption. And, in some states, it might be more difficult for same-sex couples to petition successfully for a second parent adoption. For a detailed breakdown of second parent adoption with a focus on adoptions by same-sex couples, check out the National Center for Lesbian Rights’ publication Legal Recognition of LGBT Families.
Adoption agencies are allowed to create their own rules about who can adopt and under what circumstances, as long as they don’t run afoul of state law. You might find that adoption agencies are biased against unmarried couples, or make it more difficult for unmarried couples to adopt.
To overcome any potential bias you might encounter, be prepared to explain why you haven’t married and to make a good case for your fitness as a parent. In general, you should expect to do extra work to prove that your home is a stable and healthy environment for raising children. A local social service agency will conduct a home study and interview both partners and then report to the court, which must approve adoptions. You might have a longer wait for a child, or you might have to broaden your ideas about the age and type of child you want to adopt.
If you believe you might encounter a lot of roadblocks with an agency adoption, you might want to explore other types of adoption, such as identified or independent adoption.
Aside from meeting your state’s laws regarding marital status and general fitness to be a parent, you might have to meet other requirements in order to adopt a child. Many states require prospective parents to:
Every state’s laws on adoption are different, and it’s easier to adopt in some states than others. To find out the exact requirements for adoption where you live, it’s best to contact a local adoption attorney or agency. Although internet research on the topic is helpful, it’s often inaccurate—the laws change quickly, and many rules about adoption are established by case law, making them particularly difficult to understand without assistance from a local professional.
For an overview of legal issues involving adoptions, including different options, such as agency and private adoptions, see the Adoption topic on Nolo’s website.
The U.S. government has published a helpful pamphlet titled, Who May Adopt, Be Adopted, or Place a Child for Adoption? You can also look up your state’s adoption statutes on the Child Welfare Information Gateway’s website.
Social service and government agencies often discriminate against unmarried couples, and adoption proceedings can often be complex (particularly if it’s a private adoption). Consider getting some legal advice before you and your partner try to adopt. For a list of local family law attorneys, see Nolo's Lawyer Directory.
The National Council for Adoption’s website is also a great resource—it maintains information about adoptions as well as a page to help people find adoption agencies and attorneys.
]]>Sometimes when an unmarried couple decides to live together, one partner already owns a house and the other partner moves in. When this happens, issues of property ownership and how to deal with expenses inevitably arise.
In some cases, the person moving in simply agrees to pay half (or some other agreed-upon portion) of monthly expenses, (mortgage payments, insurance, taxes, and the like)—putting off the decision to share ownership until both partners gain confidence that their relationship is likely to endure.
In other situations, the couple decides that the person moving in will become a co-owner by paying the original owner for half of the property’s equity. This can be done in one lump sum or by paying the existing owner in monthly installments (under a separate promissory note). Whatever your agreement, you’ll want it in writing, spelling out all the financial details, such as the fair market value of the house, how you will share ownership in the property, and how and when the person moving in will make payments to the current home owner. See the Sample Agreement for One Person to Move Into the Other’s House and Become an Immediate Co-Owner included here for a model in preparing your own agreement. For advice on the general clauses included in house ownership agreeements, see the article Contract for Equal Ownership of a House by an Unmarried Couple included on this site.
If a nonowner is going to contribute to his or her partner’s residence and never become an owner of record, we strongly recommend having a written agreement clarifying whether or not the nonowner will receive any share of the appreciation, or will simply be considered a renter.
If you decide to sell a share of your house, spend some time with a tax accountant and real estate attorney unless you are totally confident that you understand all the tax and legal issues involved. The rules for a partial buyout by an unmarried partner are a bit murky, so if a lot of equity is involved, check with an accountant or a tax attorney. See Nolo’s Lawyer Directory for a list of local real estate and tax attorneys.
Check out the tax consequences. If you receive no money from the sale of an interest in your house in a particular year, there is normally no taxable gain or income to report from the sale; but it may be considered a gift, which can have long-term estate tax consequences for the donor. If you do receive money from the sale, you have to determine what percent is a return on your initial capital (not taxed) and what percent is interest and profit (which may be subject to a tax if the house has a great deal of value). However, federal tax law now provides that if the house has been your residence for at least two of the last five years before the sale, the first $250,000 in capital gains received by each partner is not taxed. In some states, you also may have to pay a transfer tax or increased property taxes. For information on tax laws involving real estate transactions, see IRS Publication 523 on the IRS website; this specifically covers tax issues when selling your house.
Beware of the Due on Sale Clause. If you sell a share of a house already subject to a mortgage or deed of trust, you may need lender approval under the terms of a “due on sale” clause. Most real estate mortgages contain a due on sale clause that requires that the borrower pay off the entire mortgage before selling the property, unless the lender approves the sale without full payment of the mortgage. The lender may not approve for a variety of reasons, especially if your fixed rate mortgage interest rate is below the current market rate, but many lenders do not enforce this clause at all. This may mean you’ll need to pay off the existing mortgage and refinance. Or it may cause you to rethink the wisdom of the entire transaction. For example, you might decide not to change ownership at all, but instead use the other partner’s money to purchase other assets that would remain in his or her name, but be used to benefit both partners.
Where one member of a couple is more affluent than the other, the most realistic approach for many couples is to draft an agreement that allows the person moving in to become a co-owner gradually. Although there are a number of ways to do this, the most common is to provide that each month the person moving in will pay a portion—or, possibly, all—of the monthly mortgage cost in exchange for receiving a tiny equity share in the house. See the Sample Agreement for One Person to Move Into the Other’s House and Become a Co-Owner Gradually as a model in preparing your own.
There is no correct way to determine how much the gradual co-owner must pay before he or she becomes a half-owner of the home. Many factors come into play, making the calculation tricky. For example, the value of the home probably will fluctuate during the time period when payments are made. The more the original owner has already paid, the more the gradual co-owner will have to pay. The length of the mortgage will factor in too. And finally, part of the gradual co-owner’s payment will go towards interest, not principal—making the interest rate important as well.
There are several options to determine the amount the gradual co-owner must pay before owning a half interest in the home:
• Some couples ignore all of the above factors and decide that the new owner simply must pay an amount equal to the original owner’s current equity.
• Some couples decide that the gradual co-owner must pay more than the original owner’s current equity, perhaps 25% or 50% more, based on an estimate of long-term appreciation. Couples that follow this approach do so on the theory that money already invested is worth more than money to be invested in the future. And, the fair market value of the house is likely to increase over time.
• Another approach is to consult an expert in real estate finance who is familiar with the local market, and get an opinion as to what would be a reasonable amount.
]]>When you buy a house with your partner, you must decide how you will own the property, or "take title.” Since in this context “title” is a synonym for “ownership,” your decision has huge and lasting consequences, particularly on estate planning issues. Assuming you are buying the house for personal and not business use, you have three basic choices:
• one person holds title as sole owner
• both of you hold title as “joint tenants,” or
• both of you hold title as “tenants in common.”
If a recorded deed contains only one name, that person is the legal owner and has full legal power to sell or will away the house or other real property, even if someone else has contributed to its purchase and holds a nonrecorded interest.
Sometimes, a couple that jointly owns a house is tempted to put only one name on the deed to save on taxes, avoid creditors, or for some other reason. The tax savings can be attractive if one of your incomes is very high and the other’s is very low, because it allows the high-income person to take all the house-related tax deductions. Or, if one person’s credit is terrible, it may seem like a good idea not to mention his or her interest in the property in order to get a loan to buy the house.
In most cases the risks inherent in putting a jointly owned house in one person’s name far outweigh the benefits. If your partner is the only one named on the deed (and is therefore presumed to be sole owner), you may be out of luck if your partner sells the house and pockets the money, or dies and leaves it to someone else. Sure, you can sue your ex-partner in an attempt to recover the amount of your financial interest in the property, but this type of lawsuit is often difficult to win, as most states have a strong legal presumption that the person whose name appears on the deed is the owner. In any case, a lawsuit designed to prove that a person whose name does not appear on the deed is a co-owner is likely to be expensive, stressful, and time-consuming.
If one person’s credit will absolutely doom a loan application, it may be possible to take out the loan and purchase the property in one partner’s name alone, and then add the second partner’s name to title immediately thereafter. But be very careful here: Make sure you actually follow through and add the partner’s name officially, and be aware that in some places transfer taxes and fees may apply to the transfer. In some instances the lender may be entitled to “call in the loan” if you add someone to title like this, but in our experience this rarely happens as long as you stay current on the loan payments.
If you decide to list only one name on the deed, you may want to sign a separate contract that spells out the actual property interests of both parties. Before you do this, be sure to see an experienced real estate lawyer. Being an “off-title” owner can create a myriad of problems, especially with the tax authorities. You may not be able to deduct your mortgage contributions or any profits earned if you later sell the property. Or, creditors may claim that you are trying to conceal assets from them, which could lead to other problems. You should also talk with a lawyer about whether to record such an agreement with the County Recorder’s office if you do make it. In some places it can be very expensive to add someone to title later on, especially if that person is not your legal spouse, so make sure you investigate before making a final decision.
If you take title as joint tenants, you share equal ownership of the property and each of you has the right to use the entire property. If one joint tenant dies, the other automatically becomes the owner of the deceased person’s share, even if there’s a will to the contrary. This is called the right of survivorship. In fact, some states require that after the words “joint tenants,” you add the words “with right of survivorship” (hence the common abbreviations JTWROS or Jt Ten WROS).
An advantage of joint tenancy is that at the death of the first joint tenant, the property passes to the surviving joint tenant without the expense and trouble of probate proceedings. But just because you establish a joint tenancy does not mean it will last forever. If one joint tenant sells her share, the joint tenancy ends (in most states this is true even if the other joint tenant is unaware of the sale). The new owner and the other original owner become tenants in common (discussed below). And in most states a joint tenant may end the joint tenancy at any time, again with the result that the owners become tenants in common with no right of survivorship.
Before taking title as joint tenants, be sure to consider the following issues.
Joint tenancy is appropriate only when each joint tenant (in theory, there can be any number) owns the same percentage of the property. Thus, you and your partner can each own 50% of the house, or three people can each own one-third. But if you own 60% of a house and your partner owns 40%, joint tenancy won’t work. In that case, you’ll be tenants in common.
However, having one person provide most or even all of the down payment doesn’t mean you can’t be joint tenants. As long as you agree to own the house equally, joint tenancy will work fine. This can be accomplished if the person making the down payment gifts a half interest to the other or, more typically, if the more affluent partner agrees to lend the other his or her half of the down payment. If this is your plan, make sure that the loan is documented in a promissory note or a written agreement, as in some states a joint tenant has no right to a reimbursement unless the owners have a written agreement.
Taking title to a house in joint tenancy is an effective way to pass it on to the survivor without going through probate (and with no need to include it in a will). However, if you own a home by yourself, and want your partner to get it when you die, it’s rarely a good idea to change the title to a joint tenancy just to achieve this result. Here’s why.
First, by putting the house in joint tenancy, you immediately gift one-half of it to your partner, which may have tax consequences. Also, if you later split up, in most states you have no right to get that half back. Second, if your partner incurs debts, creditors can attempt to collect from his or her share of the equity—something that wouldn’t be possible if the house were still in your name alone.
If you want your partner to get the house when you die, it is far better to make a will or living trust stating that desire. Then, if circumstances change, you can simply change the will or trust. For more on wills and trusts, see Nolo's Estate Planning section,
Sometimes, the partner who owns the home is worried that, upon the owner-partner’s death, the other partner will have no place to live. But the owner-partner would eventually like the home to go to another heir, perhaps a child. In this case, the owner-partner could retain sole ownership of the property but grant a life estate to the other partner—which would give the nonowner-partner full use of the property until his or her death. Then, when the nonowner-partner dies, the home passes to the heir. Joint tenancy also can create estate tax problems if only one person in the couple has contributed to the purchase. If this is your situation, talk to an estate planning lawyer familiar with legal issues facing unmarried couples.
Perhaps the most common way for unmarried couples to take title to real property is as “tenants in common.” Unlike a joint tenancy, a tenant in common has no automatic right to inherit the property when the other partner dies. When one tenant in common dies, his or her share of the jointly owned property is left to whomever is specified in a will or living trust. This might well be his or her living together partner, but it could also be someone else. If there’s no will, the person’s intestate heirs will inherit his or her share–and that does not include a living together partner.
If you choose to own the home as tenants in common but agree that if one partner dies, the other will get the entire home, be careful. Your partner could change his or her will at any time to leave his or her share of the property to someone other than you. And there’s no rule that says your partner must notify you of the change.
Tenants in common can legally own property in unequal shares—for example, one person could own 80%, and the other 20%. When ownership is unequal, both names are still listed on the deed as tenants in common. In most states, you can specify your ownership percentages on the deed or in a separate written agreement that you sign, and in some instances may wish to record the document along with the deed at your County Recorder’s office. You can also use a written agreement to provide for reimbursement of a down payment. If you do own property in unequal shares, be sure to put your agreement in writing. The law will normally presume 50-50 ownership when the deed to a piece of property says it is held by tenants in common or as joint tenants.
If you’d like your share of the home to go to someone other than your partner when you die, but want to make sure your partner has a place to live, you can own the home as tenants in common and include a life estate provision in the deed. This means that upon your death, your partner can remain in the home until he or she dies. Then, your share of the home passes to your chosen heir.
What happens if you take title in one legal format and later jointly agree you want to change it to another? For instance, because one of you makes a larger down payment, you decide to take title as tenants in common. Several years later, after the birth of your child, you both decide it makes sense to change to joint tenants so as to avoid probate if one of you dies. This can be accomplished by purchasing a blank deed form and then making and recording a new deed granting the property “from Andrew West and Joanne Yu as Tenants in Common, to Andrew West and Joanne Yu as Joint Tenants With Right of Survivorship.” You will also need to prepare and record a new deed if one partner is sole owner of a house and the other partner will become a co-owner (discussed below). Check with an experienced real estate lawyer make sure you’re using the proper deed and language and to determine whether this will trigger any tax liabilities. If your home is in California, see the Nolo book Deeds for California Real Estate, by Mary Randolph.
In some cities, counties, and states, unmarried couples can register as domestic partners; some employers also provide benefits to registered domestic partners. Domestic partner registration won’t have any impact on who holds title, nor on any claim a non-owner might have, based on contributions to a partner’s property. The only effect it might have is on transfer taxes in some cities or counties. Check with your local County Recorder if this is an issue for you.
Buying property will likely be an occasion for the two of you to talk about “the marriage question.” We don’t offer any relationship advice, but we do recommend that if marriage is on the horizon, this would be the right time to make that decision. Title and taxation issues both are profoundly different if you are married, and changing your marital status after you buy the house can invite some complicated tax and ownership issues. And by the way, don’t be tempted to tell the title officer you’re married if you’re not—it will only create confusion and possible problems down the road.
If you have any questions about taking title, be sure to consult with an experienced real estate attorney.
For more information on buying a house, see Nolo's Real Estate section.
]]>Many people make purchases item by item, understanding that whoever makes the purchase owns the property. You could buy the kitchen table and chairs, and your girlfriend buy the lamp and stereo. If you split up, each keeps the property he or she bought. In this situation, you would use the Agreement to Keep Property Separate form included here.
Purchases also can be pooled. You can jointly own everything bought during the relationship, and divide it all 50-50 if you separate. In this case, the Agreement to Share Property, also included here, would be appropriate.
While these types of consistent approaches to property ownership may simplify things, they are required by neither law nor logic. You could choose a combination of the two methods. Some items may be separately owned, some pooled 50-50, and some shared in proportion to how much money each of you contributed toward the purchase price or how much labor each put into upkeep.
Many unmarried couples opt for a basic keeping-things-separate approach, at least when they first get together. However, an unmarried couple will often want to own one, or sometimes several, major items together, as would be the case if you pool income to buy a car and an expensive sound system. Clause 6 in the sample Agreement to Keep Property Separate form allows you to easily do this.
You can prepare an Agreement for a Joint Purchase using the form included here. Simply fill in the details of your joint purchase, including the item or property bought, the percentage of ownership (such as 50-50 or 60-40) each of you has, and how you will deal with the property should you split up. For example, you may specify that one person automatically has the right (of first refusal) to buy out the other’s share. You may agree to do a simple coin toss or come up with your own approach depending upon the particular property.
It’s not uncommon for unmarried couples to purchase a car together. If you do so, be aware that buying a car means entering into a series of agreements with third parties (for example, a car dealer, a bank, and an insurance company) that are binding regardless of the status of your relationship.
It's important to understand your state vehicle ownership rules before you come up with an agreement to jointly purchase a car (or if you want to change ownership or title in a car you already own). State rules often vary, so don't just rely on the general vehicle ownership rules described below, Check with your state’s motor vehicle department regarding the words that should be used to establish the different types of joint ownership of motor vehicles. These may be slightly different from those outlined here.
Here are some of the common legal ways you can jointly share ownership of a car. You will want to choose the one that is most financially viable for your situatins.
Sole Ownership. If you intend that the vehicle will belong to only one partner, but the other partner will advance part or all of the down payment in the form of a loan, the borrower should sign a written contract to repay. This contract is a called a promissory note. If you choose this option, you should register the vehicle in the borrower’s name only.
If you decide that only one of you will own the car, you can include the other partner as an “additional driver” on the car insurance. One advantage to sole car ownership: If the car is involved in an accident, only the partner who owns the car can be sued. (But if the other partner was driving, that person could be sued for negligent actions.)
Joint Ownership. If you intend to own the vehicle jointly, you’ll need a written agreement outlining the details. This is especially important if only one of you signed for the loan but both of you will be contributing toward its repayment. When you register the vehicle with the state, put it in both names. Depending on state law, you often have three options with car registration:
Option 1. “Thomas Finnegan or Keija Adams.” This creates a joint tenancy in many states; if one person dies, the other automatically inherits the car without going through probate. However, depending on state law (see Option 3, below), the “or” form of ownership lets either party sell the vehicle without the knowledge or consent of the other.
Option 2. “Thomas Finnegan and Keija Adams.” This establishes a tenancy in common; both signatures are required to transfer title of the vehicle. At death, however, each person can leave his or her share to anyone he or she wishes. If no estate plan is made, the nearest blood relative inherits the deceased person’s share by intestate succession. If you want your partner to inherit your interest in the car, include it in your will or consider Option 3, below.
Option 3. “Thomas Finnegan and Keija Adams, as Joint Tenants With Right of Survivorship.” Not only does this let the survivor automatically inherit the car without going through probate if one of you dies, but it also requires both signatures to transfer title while you’re both alive.
See our tips for writing a living together agreement before preparing your own agreement. You can edit this Agreement for a Joint Purchase as you see fit, or use it as a starting point to prepare your own agreement. For example, if one of you purchased the jointly owned item by credit card, you may want to add details to Clause 2, clarifying that one person made the purchase, but that the item is jointly owned. See the Sample Joint Purchase Agreement When One Partner Is the Legal Borrower, for ideas.
Make two copies of the final draft (including any attachments) so you and your partner each have a copy.
Sign and date both copies of your agreement. It makes no difference who keeps which—both are “originals.”
Keep your copy in a safe place, along with other important documents, such as insurance papers, title slips to jointly held property, leases, copies of wills, important financial papers, and the like.
Keep in mind that only the partner whose name is on the credit card used to purchase an item is legally obligated to pay, even if you have an agreement splitting the cost. If only one of you signs a credit agreement to purchase an item, only that person is legally obligated to pay the creditor. This is true even if you and your partner sign an agreement to share ownership and payments. The creditor will accept money from anyone and properly credit the account, but if a payment isn’t made, the creditor will pursue only the person whose name is on the account.
The Sharing Solution, by Janelle Orsi and Emily Doskow is a practical and legal guide on how to create and maintain successful sharing arrangements--from purchasing a car or house together to forming a buying club to purchase household goods.
Agreement for a Joint Purchase
Amy Randolph and Brett Bow
agree as follows:
1. We will jointly acquire and own a Sony flat-screen television set (the Property) at a cost of $ 1850 .
2. We will own the Property in the following shares [fill in]:
Amy will own 50 % of the Property and Brett will own 50 % of the Property.
3. Should we separate and cease living together, one of the following will occur:
a. If one of us wants the Property and the other doesn’t, the person who wants the Property will pay the other the fair market value (see Clause 4) of his or her share of the Property.
b. If both of us want the Property, the decision will be made in the following way [choose one]:
(1) Right of First Refusal. Amy shall have the right of first refusal and may purchase Brett’s share of the Property for its fair market value (see Clause 4). Amy will then become sole owner of the Property.
(2) Coin Toss Method. We will flip a coin to determine who is entitled to the Property. The winner, upon paying the loser for his or her share of ownership, will become the sole owner of the Property.
4. Should either of us decide to end the relationship, we will do our best to agree on the fair current value of the Property. If we can’t agree on a price, we will jointly choose a neutral appraiser and abide by that person’s decision.
5. Should we separate and neither of us wants the Property—or if we can’t agree on a fair price—we will advertise it to the public, sell it to the highest bidder, and divide the money according to our respective ownership shares as set forth in Clause 2.
6. Should either of us die while we are living together, the Property will belong absolutely to the survivor. (If either of us makes a will or other estate plan, this agreement shall be reflected in that document.)
7. This agreement can be changed, but only in writing, and any changes must be signed by both of us.
8. Any dispute arising out of this contract will be mediated by a third person mutually acceptable to both of us. The mediator’s role will be to help us arrive at a solution, not to impose one on us. If good faith efforts to arrive at our own solution to all issues in dispute with the help of a mediator prove to be fruitless, either of us may pursue other legal remedies.
9. If a court finds any portion of this contract to be illegal or otherwise unenforceable, the remainder of the contract is still in full force and effect.
Sample Joint Purchase Agreement When One Partner Is the Legal Borrower
Marcus Lyons and Karen Moore agree as follows:
1. Marcus has entered into an agreement with Racafrax Company to purchase a bedroom set consisting of one king-size bed, one double dresser, two night stands, and two lamps at a total cost of $2,500.
2. Marcus has agreed to pay to Racafrax that sum in monthly installments of $240, including interest, for 12 months, due on the first of every month beginning January 1, 20xx.
3. We intend that this bedroom set will be owned equally by both of us and that we each will pay one-half the cost.
4. Karen will pay Marcus $120 per month at least one week before each monthly payment is due. Marcus will pay the entire installment due to Racafrax in a timely manner.
5. Should either of us fail to make his or her share of the payment, the other will have the right to do so, and the ownership percentage of this person will be proportionately increased. If, for example, Karen makes sixteen payments (all of hers and four of Marcus’s), she’d own , or , of the furniture.
6. Each of us shall keep a record of payments made. All payments shall be made by check.
7. If we stop living together, Marcus may buy the bedroom set from Karen by agreeing to be solely responsible for the rest of the monthly payments to Racafrax and by paying Karen one-half of the difference, if any, between the bedroom set’s current resale value, and the amount of money still owed to Racafrax.
8. If Marcus does not want the furniture under the terms set out in Paragraph 7, Karen may buy the bedroom set by paying the full amount still owed to Racafrax, so that Marcus no longer is obligated to make payments to Racafrax, and by paying Marcus one-half of the difference, if any, between the bedroom set’s current resale value and the amount of money still owed to Racafrax. Alternatively, Karen may enter into an arrangement with Racafrax to take over the payments herself, and pay Marcus one-half of the difference between the bedroom set’s current resale value and the amount of money still owed.
9. If neither person wants the bedroom set, the furniture will be sold. The balance owed Racafrax shall be paid from the proceeds of sale, and any remaining money will be divided between us equally or, if either of us has made extra payments under Paragraph 5 of this agreement, according to our ownership share.
10. Should either of us die while we are living together, the furniture will belong absolutely to the survivor. If either of us makes a will or estate plan, this agreement will be reflected in that document.
11. This agreement can be changed, but only in writing, and any changes must be signed by both of us.
12. Any dispute arising out of this contract will be mediated by a third person mutually acceptable to both of us. The mediator’s role will be to help us arrive at a solution, not to impose one on us. If good faith efforts to arrive at our own solution to all issues in dispute with the help of a mediator prove to be fruitless, either of us may make a written request to the other that the dispute be arbitrated. If such a request is made, our dispute will be submitted to arbitration under the rules of the American Arbitration Association, and one arbitrator will hear our dispute. The decision of the arbitrator will be binding on us and will be enforceable in any court that has jurisdiction over the controversy. By agreeing to arbitration, we each agree to give up the right to a jury trial.
13. If a court finds any portion of this contract to be illegal or otherwise unenforceable, the remainder of the contract is still in full force and effect.
The fastest-growing demographic group among unmarried couples is seniors (one source says that over the past decade, the number of unmarried partners over the age of 65 has increased by 70%). All of the same reasons that younger couples give for not marrying may apply to seniors as well—not wanting to repeat experiences from a bad marriage or not wanting the state involved in the relationship, for example—but for many seniors, finances are the biggest issue preventing legal matrimony.
There are a number of common concerns that seniors have about tying the knot.
Social Security and Pensions. If you are divorced and you remarry before age 60, you’ll lose Social Security income from a previous marriage to which you would have otherwise been entitled. (However, you may get more from your new spouse’s Social Security payment, so use the calculator available from the Social Security Administration to figure out whether this is a real problem for you.) The same is often true of pension benefits awarded to you as part of a divorce settlement.
Marriage can also affect the amount of taxes you’re required to pay on your Social Security benefits when you begin receiving them. A single person can earn $25,000 per year before being taxed on those benefits, while a married couple can have total income of only $32,000 before taxes are levied.
Estate Planning. If you have college-age children, marriage may mean that your new spouse’s income is counted for financial aid purposes, which in turn may reduce the aid your child is eligible for. And if you have adult children and want them to inherit the bulk of your estate, you must use careful estate planning to ensure that your wishes are carried out. Spouses have certain inheritance rights in many states, and if you want to do something that limits those rights you must make sure your documents are in good order.
Alimony. If you were in a long-term marriage that ended in divorce and you’re receiving alimony, you’ll most likely have to give that up when you remarry—check your divorce order.
Medical Expenses. When you marry, you take on responsibility for your partner’s support and care. If your new spouse has serious health concerns, you may not want to take on that financial responsibility. Unmarried couples, no matter how intimately connected in personal and financial ways, don’t take on this same responsibility.
With all of these potential concerns, it’s no wonder seniors are cohabiting in droves. If you are considering getting hitched, we’d recommend seeing an attorney or tax professional who can advise you about the pros and cons of marriage in your particular circumstances. See Nolo's Lawyer Directory for a list of local family law attorneys. If this is a second marriage, see Nolo's Estate Planning for Blended Families, by Richard E. Barnes.
A written living together agreement is especially crucial for seniors who have substantial property and assets and make joint purchases, for reasons discussed in the article, Living Together Contracts: The Basics. In addition to preparing a written agreement spelling out legal and financial arrangements regarding money and property and home ownership, seniors should prepare estate planning documents such as a will and health care directive.
]]>Living together has never been more popular. According to the 2010 Census data, over 7.5 million unmarried couples live together (which translates into 15 million people). This is a whopping 138% increase since 1990, and an increase in 13 % from 2009 alone. Forty percent of unmarried households have children. The number of cohabiting seniors has increased significantly in the last 10 years and is continuing to rise.
If you are part of an unmarried couple living together, it’s probably comforting to know that you are far from alone. However, this doesn’t mean that you can ignore how the law affects your relationship.
There is a wide range of legal and practical rules that affect unmarried couples living together—from sharing money and property (contract law) to owning a house together (real estate law) or sharing an apartment (landlord-tenant law) to having a child with your partner (family law) to writing a will (estate planning).
When you understand the law, you and your partner can make informed decisions about how to structure your life, finances, property ownership, and family relationships to best meet your needs. Failing to learn about the law and take measures to protect yourself and your partner can have negative consequences. The special rules governing married couples (such as those relating to property ownership, divorce, and inheritance rights, to name a few) don’t apply to unmarried couples. In order to compensate for this, you’ll have to do some extra work. For example, you may want to:
Most unmarried couples can safely and easily master the majority of legal rules that affect them. However, it’s also true that an experienced lawyer’s advice can be invaluable when it comes to dealing with more complicated situations—for example, if one of you has children or substantial assets, or you’re dealing with complicated estate planning.
There are many reasons why people choose to live together without getting married. Some don’t see the need for the state’s approval of their commitment to each other. Many couples view it as a trial period before marriage. Some avoid marriage because they have gone through a messy divorce. Many people live with partners for economic reasons, especially in expensive urban areas with high-cost housing. And the fast-increasing number of unmarried couples over 45 that live together—over one-fifth of all unmarried couples fall into this category—often have financial concerns that come into play. For example, by not marrying they don’t become legally obligated for their partner’s medical treatment, and they reduce the risk of paying tax on Social Security benefits. And by not marrying, many avoid tricky inheritance issues if one or both partners have children from a previous marriage or own substantial assets.
One of the most common reasons older couples choose to live together instead of marrying is to avoid joint liability for debts, especially for long-term care or medical bills. Staying unmarried also enables each partner to qualify individually for public benefits, such as Medicaid, without draining the other partner’s resources. There are detailed rules about how this must be structured to avoid inadvertent triggering of joint liability, so if you are considering such a strategy, consult with an attorney specializing in elder law before you make any big decisions.
Finally, changing social attitudes and values have made living together less of a stigma; living together is not considered as rare (or immoral) as it was 30 or more years ago. In fact, the American Law Institute, an influential organization of lawyers, judges, and legal scholars, recently recommended sweeping changes in family law, including recommending that family courts and state lawmakers begin to treat living together relationships more like marriage—even recommending that laws provide for alimony-like payments when unmarried couples split up after a long time together.
For resources, support, and advocacy for unmarried people living together, check out the Alternatives to Marriage Project.
No matter what state you live in, both parents—whether married or not—have a legal obligation to support their children. Don’t be confused by the fact that the court usually orders only one parent to make child support payments. That's because the law assumes that the custodial parent (the one the child primarily lives with) is already contributing to the child's support on a day-to-day basis, by directly providing food, clothing, and shelter.
The basics of child support—including who pays—have been fairly consistent across the states. But for many years, the dollar amount of child support a parent should pay was an educated guess at best, depending on which judge happened to be hearing the case.
In order to help judges make fair and consistent child support decisions, each state now has child support guidelines. The guidelines do differ somewhat from state to state. But generally speaking, they use a formula based on parental income to calculate the support figure. The guidelines typically take certain other factors into consideration as well, such as health insurance costs, work-related child care, and the amount of time the children spend with each parent.
States do give judges the leeway to order an amount of child support that's higher or lower than the amount calculated under the guidelines. But in order to do that, a judge almost always has to explain why strict application of the guidelines would be unjust or inappropriate under the circumstances in the particular case.
Normally, if you remarry or live with a new partner, that won’t—in and of itself—affect an existing child support order. That’s because your new partner usually has no legal obligation to support your children from a prior relationship. And the child support guidelines in most states don’t use a new partner’s income when calculating child support.
But that doesn't mean that a new marriage or cohabitation will never have any impact on the amount of child support a parent owes.
Even in the majority of states that don't take new-mate income into account when calculating child support, a parent's new relationship could have an indirect effect on the parent's child support obligation in some circumstances. To understand how that might work, it’s important to point out that child support is primarily based on a parent’s ability to pay.
For example, let’s say that you pay support for a child from a previous marriage and are now living with a new partner. In all likelihood, that partner will be contributing to at least some of your joint household expenses, such as utilities, maintenance, and rent. If your child’s other parent files a motion (written legal request) with the court requesting an increase in child support, your state’s child support guidelines might take into consideration the fact that your expenses have decreased (or at least should have done so). This means you would have more disposable income and, therefore, the ability to pay more support.
Using that same logic, if you're the parent receiving child support, and you begin living with a new partner, your child's other parent might be able to make a case for lowering child support payments based on your reduced living expenses.
Under either of those scenarios, the end result will depend on the particular circumstances of your case, as well the specifics of the guidelines in your state.
If you're living with (or married to) someone who has minor children from a previous relationship, that shouldn’t affect your child support payments in most states—even if those kids are living with you.
If you're living with (or married to) someone who has minor children (usually under 18 years old) from a previous relationship, that shouldn’t affect your child support payments in most states—even if those kids are living with you. Again, there’s ordinarily no duty to support children from a new partner’s prior relationship.
Be aware that there can be exceptions, particularly if you've remarried. For example, Missouri law requires a stepparent to support a stepchild as long as that child is living in the same home. However, the law can order the natural parent to reimburse the stepparent if the stepparent’s payments were needed because the natural parent failed to pay support under an existing court order. (Mo. Rev. Stat. §§ 453.400(1) and (2) (2023).) Some states require stepparents to support their stepchildren if the natural parents can’t.
But if you aren't married to your live-in partner, you aren't legally considered the stepparent of your partner's children.
In calculating child support in any particular case, state guidelines typically take into account the paying parent's legal obligation to support other children from a different relationship. This obligation will usually lower the child support amount.
So if you and your new partner have children together, you're legally obligated to support those kids. And if you're paying child support for kids from a previous relationship, you may be able to request a reduction in your current support payments to your ex.
Considering the fact that married parents don't normally have to pay child support when they’re living together, there’s no reason to think unmarried parents should have to pay support in the same situation. But there are a couple of situations that might change that general principle.
One is when unmarried parents separated (or never lived together), and one of them was designated as the custodial parent in a court proceeding. If that parent received public assistance, such as Temporary Assistance for Needy Families (TANF), the noncustodial parent would be liable for child support, payable as reimbursement to the TANF program. (You can’t get TANF benefits without a child support action in court.)
If the parents then begin living together, the child support requirement would likely remain in place as long as one of them is still receiving public assistance. But in this situation, custodial parents should consult with the office where they made their application for benefits. They'll need to find out whether the new living arrangement affects the assistance amount—or their ability to continue receiving benefits at all. This is important, because some assistance programs calculate benefits based on household income.
Another possible scenario is one you don’t see too often. If an unmarried couple are living together and one of them refuses to contribute to expenses for the children or the household, the other parent could conceivably file a request for child support with the court. The chances of success likely hinge on the specific facts of the case and the willingness of the courts in your state to address this unusual issue. In this situation, separating from the deadbeat parent might be the easier path to getting court-ordered child support.
Occasionally, parents who've been living apart (or even divorced) will reconcile and begin living together again. If there’s a child support order in place, it makes sense that support should end—assuming the parent who was ordered to pay support contributes to the expenses involved with raising the children and maintaining the home.
But you can’t just arbitrarily stop paying child support. Until a judge changes or terminates a support order (more on that below), you’re still on the hook for making the payments under the existing order.
Having children with a new partner would probably be considered a significant change of circumstances to warrant a modification of your existing child support order.
In order to change (modify) a child support order, you have to get the court’s permission. Start the process by filing a motion (written legal request) with the court. Most states require that you show there's been a significant change in circumstances since the existing court order was issued. What qualifies as a significant change may vary from state to state.
Having children with a new partner would probably be considered a significant change of circumstances to warrant a modification of your existing child support order. Even without new kids, living with a new partner might qualify, depending on how much your expenses have been reduced (freeing up income to pay child support).
But be aware that courts in some states won’t consider a request for a child support modification unless—after applying the child support guidelines—it would result in an increase or decrease in the current support amount by a certain percentage, usually 10 to 20 percent.
If separated parents get back together, a judge would probably consider their reconciliation a significant enough change to warrant ending child support. But it’s important for the parent who's been paying support to immediately file a motion to terminate the support order. This is especially critical because most child support payments are taken out of the paying parent’s wages, and employers are legally obligated to continue to withhold that money until they receive a copy of a court order telling them to stop.
If you’re faced with a child support issue, there are a number of avenues open to you for getting assistance:
My live-in boyfriend of two years walked out on me. While we lived together, he paid me minimal housing expenses, but nothing like half. Also, I loaned him money and he's only paid back $100 of a few thousand. Am I legally entitled to any housing compensation or money for the loan, even though there was no written contract for either one?
Unless you have a provable agreement, which usually means a written one, you have no right to get back past living expenses.
But you definitely do have a right to be repaid that loan. First, figure out how much he still owes you. Second, ask him in writing to pay you back. Third, if he refuses to pay, think about how you can prove that you made the loan -- for example, you may have a canceled check or a witness who heard the two of you talk about it. Fourth, assuming you have at least some proof, sue in small claims court. For help in preparing and presenting your case, see Everybody's Guide to Small Claims Court (Nolo).