What are the legal rights of unmarried couples – who may have parented children together and mingled finances for years – after they break up?
Long-term cohabitation is not so uncommon. Couples choose not to get married for hundreds of reasons. Some choose to save the money they would have spent on the wedding, reception, and honeymoon. For some, a long engagement got dragged out by life circumstances. Perhaps one partner does not believe in the institution of marriage. Sometimes, what starts out as a roommate situation, became a romance but not necessarily a marriage.
Sometimes couples that accidentally became pregnant together decide to live together and share in the parenting expenses and responsibilities. They may like each other but do not love each other enough to marry. Once the child is old enough, they may want the opportunity to find another partner without enduring a divorce. The thought of divorce itself is scary enough that some people avoid marrying in the first place. For many children of divorced parents, the trauma of it is enough to deter them from marrying as adults.
Some couples didn’t have a choice. Prior to the June 2015 Supreme Court decision to make same-sex marriage legal across the country, Michigan gay and lesbian couples bought houses together and shared in co-parenting each other’s children – but were not legally married.
Whatever the reason, unmarried couples may have spent months, years or decades living together. They stained the deck on the weekend like married couples. They fought about whose turn it was to walk the dog. They splurged on trips, celebrated anniversaries, nursed each other through sickness and supported each other through financial crises.
So what are the legal ramifications when these unmarried couples decide to split?
The answer depends on what legal recognition the couple sought during their relationship.
Common Law Marriage
Michigan has not allowed common law marriage since 1957. Michigan courts will only recognize a common law marriage if the couple has been together since before 1957 OR if the parties became common law husband and wife in a state that does have common law marriage laws (there are 16 in the U.S.).
Even then, common law marriages are not just about living together. Contrary to popular belief, cohabitating for seven years does not automatically make a couple married in the eyes of the court. In order for a common law marriage to be recognized, the couple must also take actions that express to the community their desire to be seen as a married couple, for instance sharing a same last name or filing joint tax returns. In the case of a recognized common law marriage breakup, the couple will have to go through a divorce-like legal process that determines the division of property and custody.
Some couples chose to sign Domestic Partnership documents during their relationship. They worked with an attorney to create Powers of Attorney, Wills, and fought to have their partners recognized as Qualified Domestic Partners. In the process of protecting their rights as partners, their lawyer likely encouraged consideration for legal agreements regarding spousal and child support and separation of assets in the event of a break-up. As long as the paperwork was signed by both parties freely, any partnership dissolution agreement should be recognized and enforceable by the courts. In addition, unmarried parents can sign legally-binding Parenting Plans that cover the issues of custody in the event of a split. Think of it as a post-nuptial agreement without the nuptial.
Division of Property
Absent legal recognition of the relationship, the parties are on their own to determine separation of assets and debt. A mediator can help them talk through an agreement. But without a Common Law marriage or Domestic Partnership, there is no basis for the courts to determine who gets what. For that reason, cohabitating unmarried couples are encouraged to keep finances separate and put both parties’ names on the deeds for any large purchases such as houses, cars, businesses, etc. These can be divided in other civil suits.
Child Custody for Unmarried Parents
As far as child custody goes, the courts will determine a parenting plan based on who is on the child’s birth certificate and paternity tests. During the relationship, if one party adopted his or her partner’s child, that person’s name will appear on the birth certificate and entitle him or her to rights as a parent after the breakup. A family law attorney can help discontinue parental rights after a break-up if certain conditions are met. Child support is calculated the same way it would be in a divorce. A big difference, however, is that since the parents are unmarried, even if the father’s name is on the birth certificate, he is not automatically assumed to be the father. In order to receive child support, the mother must prove paternity. Conversely, in order to be entitled to parenting rights including custody and visitation, the father must prove his paternity.
An attorney can help determine the legal rights of unmarried couples
There are several complex and confusing issues for unmarried cohabitating couples to tackle when they break-up. An experienced Family Law Attorney like Kathryn Wayne-Spindler can help couples prepare paperwork that protects their parental rights and assets in the event of a breakup. Contact her Milford, Michigan office at 248-676-1000. The attorneys of Kathryn Wayne-Spindler & Associates serve clients throughout Southeastern Michigan including the communities of Commerce Township, Holly, White Lake, Wixom, and South Lyon.
Written and Posted by Christine Donlon Long, Communications’ Specialist for Kathryn Wayne-Spindler & Associates