Each state has its own specific set of laws that govern how a married couple must proceed when they want to divorce. However, when unmarried partners separate, they do not have the same rights and responsibilities by law. Below are a few key differences and the legal measures you may be able to take if you’re breaking up.
If You’re Not Married, Your Assets are Not ‘Marital Property’
Unless they signed a prenuptial agreement that states otherwise, married couples who divorce must divide their assets according to state law. The courts consider everything they own to be “marital property,” including their home, cars, furniture, businesses, jewelry, investments, and retirement accounts. Even purchases under only one spouse’s name are marital property. They must also split their debts, including credit card bills, mortgages, car loans, home equity loans, tax obligations, and more.
On the other hand, unmarried partners keep their own property and debts if they split. There are exceptions, for example, if the couple bought property together, opened a joint bank account, or otherwise combined their assets. In those cases, a civil court will typically order the parties to divide the property in half, unless one partner can prove he or she paid for more and should therefore have a larger share. Most states do not enforce support setups that work like alimony for separating partners who were not married.
Common Law Marriage
Marital law generally does not apply to unmarried couples who separate. However, the following states recognize common law marriage:
- Colorado (Colo. Stat. §14-2-109.5)
- Iowa (Iowa Code §595.1A)
- Kansas (Kan. Stat. §23-2502; Kan. Stat. §23-2714)
- Montana (Mont. Stat. §40-1-403)
- New Hampshire: (N.H. Stat. §457:39)
- South Carolina: (S.C. Stat. §20-1-360)
- Texas: (Tex. Family Law §1.101; Tex. Family Law §2.401-2.402)
- Utah: (Utah Stat. §30-1-4.5)
Couples in a common law marriage did not have a wedding ceremony and do not have a marriage license. Still, they hold the same rights and responsibilities as couples who are legally married. If you live in one of the above states and are splitting from your partner, be sure to review the specific laws that govern your division of property.
Separating in Pennsylvania and New Jersey
Pennsylvania and New Jersey do not recognize common law marriage. However, when unmarried couples separate, they can still take certain measures to protect their rights and assets and ensure a fair split of the property they share.
Unmarried couples with children must abide by certain rules when they split, however. Pennsylvania law acts in the child’s best interest, regardless of whether the parents are married. One parent can still seek child support from the other. Partners who have children together should put their agreement into writing. If they cannot agree, the parents can schedule a hearing before a judge to obtain a decision.
How Unmarried Couples Can Legally Divide Their Property
If you are unmarried, you still have options if you decide to break up. A skilled family lawyer can assist you in writing and filing a legally-binding separation agreement. While many states do not recognize it in the same way as a divorce agreement, this document addresses the important legal aspects of separating, such as property division, a parenting plan, and more.
If you and your partner are separating, Petrelli Previtera Schimmel, LLC can provide the legal counsel and advice you need to move forward appropriately. Feel free to contact our firm for more information. We’ll discuss your rights and the next steps.