There is a lot of advice for going through a divorce with and without children, but there is less information widely available for those who are separating without having been married first. Without the legal dissolution of a relationship, you might feel confused and worried about what your right will be when it comes to dividing property and also sharing custody of your children. Read on to learn about how to handle a breakup when you weren’t married and what it means for you in terms of custody of your kids.
Common Law Marriage
First, be sure that you aren’t actually married. In a handful of states, living together for a certain period of time and referring to each other as “husband” and “wife” means that you might be considered married. This type of marriage is called a common law marriage. In this case, a legal resource group or lawyer will be able to tell you whether you need to go through an actual divorce process.
The states that sometimes allow a common law marriage are Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. In addition, if you have a common law marriage from years ago in Florida, Georgia, Indiana, Pennsylvania, or Ohio, it might still be considered a legal marriage.
If you are legally married through a common law rule, then you may have to file for divorce the same way you would if you were legally married in the traditional way. In this case, all of the rules and laws that apply to dissolving a marriage would apply to your breakup.
Assuming you were not married through the common law, you still might have a house or other shared property that you will need to equitably divide. If you own a house together (meaning both names are on the deed), then it is generally accepted that you each own 50 percent of the home. You might have it documented in a contract that one of you owns more of the home than the other; in this case, the signed contract takes precedence. Otherwise, it is likely that you will each own half. This is true even if only one of you works outside the home or if one of you funded the entire down payment.
If both names are not on the deed, then the house belongs to only the person whose name is on the deed. This is usually the case even if the other person has been contributing financially to the house payments. This might differ in some states, so check your state law.
In general, there are two options when both of you are on the deed: One of you can live in the home and compensate the other partner with other shared property or with a payment. Or you can sell the home and split the profits. If you cannot sell the house for what you owe, then both of you would be responsible for the liability. Again, a legal resource group will be your best source of information that pertains to your specific circumstances.
Other Shared Property
Anything that the two of you can work out on your own when it comes to shared property will allow you to save time, energy and money. Most couples who are breaking up will decide that anything that someone brought into the relationship belongs to its original owner. For example, if the two of you have been using the bedroom set you purchased before you met and the living room furniture that your ex got from his or her parents, you’ll each keep those respective items. Any shared property will need to be negotiated. If needed, a mediator can help.
Whether or not you are married, both parents are responsible for and have the rights to their shared children. Note that if you are an unmarried father whose name is not on the birth certificate, you will need to declare paternity. This mostly consists of paperwork and it might involve a DNA test to confirm that you are, in fact, the biological father of the child.
Once you are both established as the parents of the child (if you are the mother, you don’t need to do anything to establish your rights), you will go through the same custody process as a married couple going through a divorce. In many cases, you will each be granted joint physical and legal custody. This means that the child will spend time at both of your homes (it might not be 50/50, but it will be a sizable percentage of time with each parent) and each of you can take the child to the doctor, get his or her school records, and make decisions for the child.
In some cases, one parent will be granted sole legal and/or physical custody. If that happens, then the other parent might be allowed supervised or unsupervised visitation. Usually, supervised visitation is only applicable when there are extenuating circumstances such as previous child abuse, domestic violence, untreated mental illness, incarceration, or active addiction.
Regardless of whether you were married, both parents are responsible for financially supporting the child. This means that one parent might pay the other child support. The way child support is determined varies by state; usually it takes into consideration how much money each parent makes as well as how much time they will have physical custody of the child. The parent who makes more money might have to pay child support, particularly if they don’t physically have the child as often as the parent making less money.
A breakup is never easy regardless of whether you were or were not married. Negotiate what you can, starting with the less emotional items. Your child’s best interest needs to be taken into consideration, so working that out on your own, if possible, is beneficial. National Family Solutions is a legal resource group that can help you navigate this situation. Contact us to find out how we can assist.