Unmarried Couples: Property Rights After a Breakup
When lawfully married couples divorce, there is a clear process for dividing their property. For unmarried couples, however, the usual remedy is through a civil lawsuit. This is especially relevant for unmarried couples who have purchased property together and who wish to avoid litigation. For individuals to avoid court, they must agree to who will keep the property.
Typically, the parties can split the asset in half, or one party can buy out the other’s interest in the property.
If the parties cannot agree to who should get which piece of property, the court will implement a division. Unlike marital property, the law does not automatically presume that the property is equally owned.
Courts will undertake a process known as "quantum meruit" to determine if an asset should be divided based on the efforts made by the parties. Courts will look at how much each party contributed towards the purchase or maintenance of the property. Often , if one party made significant contributions over others, whether because of their higher income, greater financial contributions, or their ability to do more labor, the court will find that the more active partner should retain the property if the other party is compensated for their efforts.
If the property was purchased by both parties and sufficient funds are available, the parties are generally directed to sell the property and split the proceeds in some fashion. If one party is unwilling to sell or if the sale is impractical (because of the current market, emotional attachments, etc.) the court may grant the requesting party exclusive possession of the property or allow the unwilling party to buy out the other individual’s interest.
Child Custody and Support for Unmarried Moms and Dads
When a married couple files for divorce, Georgia law guides child custody and child support as part of the dissolution of marriage. But when an unmarried couple has a child or children then separates, they sometimes have a much tougher road to travel with child custody, child support and visitation with their children.
In these cases it’s necessary for the court to determine not only which parent has the right to custody of the child or children, but also to make determinations regarding legal custody, physical custody of the child or children, joint custody, visitation, child support, health insurance, who claims the child or children on federal taxes, and a plan for return of the child or children to school when the parents live in separate areas.
The emotional impact on the child or children subjected to a divorce proceeding is sometimes overwhelming. In many cases, children state "why didn’t you just get a divorce and marry someone else?" or "can’t we just live together?" When an unmarried couple separates, the same questions often arise from the children. Because the parents are unmarried, the emotional effects of trial and legal fees associated with custody and support and the parents’ conflicting and emotional desires regarding joint physical custody and joint legal custody can be devastating to all parties concerned particularly in light of the new A.C.G.A. §19-7-1.2.
Pursuant to A.C.G.A. §19-7-1.2(b) in Georgia, when a child is born to an unmarried woman, and if the identity of the father is unknown, the mother can file for modification for child support to enforce child support against the State of Georgia. If the identity of the father is known then the mother must file for contempt for child support for the period the parents lived together while keeping the child or children. The mother should then seek modification for child support for future support and joint legal custody. The parent who files for child support is encouraged to seek child support from the Georgia Department of Family and Children Services, Child Support Enforcement as a plaintiff. The program is free, however, the drawback is that the agency litigation lawyers with the Department do not provide advice to parents on how to maximize or minimize their child support payments or what other remedies they might have available to them to protect their rights concerning their children.
Dividing Debts and Financial Responsibilities
An important part of the process that an unmarried couple must undertake when separating involves determining who is responsible for what debts and how to fairly settle that responsibility. If all goes well, a couple has already worked on this during their cohabitation, and dividing joint debts and other financial issues is more a matter of good manners than a legally binding obligation. Since this is not always the case, however, and also because some couples have combined their finances more or less seamlessly, it’s often up to the courts to sort through the issue.
While some issues regarding debt might be settled in accordance with a cohabitation agreement, creditors do not necessarily recognize those contracts, even if they are also enforceable in family court. For example, if you opened a joint credit card account and then stopped paying the bill, the creditor can ask the court and provincial government to trace the unpaid debt to the assets of that account. Even if you have not been authorized to make charges on the account, you may be held 100 per cent responsible for the debt, especially if the primary cardholder agreed to open the account in your name.
If you and your ex still have joint debts, the matter can be complicated. In some cases, the creditor may make a claim against you because of the fact that your name is on the debt agreement, which could result in a few different scenarios:
● If you make more than your ex and in particular if your name included the property where the debt was incurred, the creditor may pursue you for the debt, even if your ex has refused to make repayments.
● If you prevail in court, you may apply for and be awarded interest on the money that you’ve had to pay on behalf of your ex, but the creditor may still attempt to collect from that person.
● If you haven’t paid on the debt and your ex settles and they successfully sue you for the rest of their share, it may be difficult to get the creditor to reverse your liability.
If the creditor has been communicating with your ex and you wish to make the payments, you’ll need to provide a copy of the separation agreement showing that the debt is to be shared. If a creditor won’t reverse course, you may need to begin proceedings in order to establish that the debt is not yours.
Cohabitation Agreements Explained
These agreements are often recognized as the most effective way to set out exact property and financial specifics. Cohabitation agreements can address the same issues as a marriage agreement, including property division and spousal support. Even if there is no intent to separate in the foreseeable future, the cohabitation agreement should be prepared at the beginning of a cohabiting relationship before either party has begun to contribute to the purchase of a major asset. Cohabitation agreements arguably provide the best protection as they can be tailored to the particular couple based on their professional and personal circumstances; greater flexibility results when couples are still contemplating their future.
This point further reflects upon a key advantage of preparing cohabitation agreements, which is that they avoid the nasty litigation that follows many common law separations. Strongly representing individual interests at the time of the signing, cohabitation agreements can however be successfully challenged if they are not fair, reasonable and just in the eyes of the relevant Court, bearing in mind the contributions and needs of each party. In the absence of an agreement, the case law demonstrates a heavy appetite for Courts to intervene and determine the division of property between the couple. Thus, preparing cohabitation agreements can head off valuable money chasing a court battle and preserve a thriving post-separation relationship between parties.
Breaking A Joint Lease Or Mortgage
Dealing With Joint Lease or Mortgage Issues With the Lender or Landlord
As children get older,’the divide between them may widen. They go their separate ways, and, as they do, it is not uncommon for a break-up to leave them with dividing up joint assets and joint liabilities. For couples who were married, the way ahead is fairly clear, but when an unmarried couple decides to break up, and they have entered into a housing arrangement together, in that arrangement, unforeseen complications may arise.
If an unmarried couple rent a place together, then in order to deal with the contact, one party needs to speak with the landlord and negotiate an exit from the lease. Rather than simply leaving, the parties should instead reach out to the landlord and make arrangements to continue paying the rent until someone can move out.
A couple of ways to work it out might be to sell the lease to a third party (likely at below market value , as it will be a small-term lease) or to have one party buy the other party out of the lease by paying a portion of the rent to that party, for example. This way, the tenant who is remaining in the unit can prove to the landlord that they can afford the increased rent on their own, and if the couple decides to have the bought-out tenant back in the unit temporarily for some time afterward, this is something that is possible to arrange with the landlord as well.
For a couple who has purchased property together, the circumstances are even more complicated. If the couple goes their separate ways, there is no option for a buyout. Instead, the couple may be forced to sell the property they purchased together, and split the profits. If one of the two parties remains in the property and continues paying expenses after the break-up, it might be possible to negotiate to continue having the joint mortgage and add the remaining homeowner to the title of the property.
Options for Domestic Disputes
Domestic disputes and protection orders – the legal safeguards when unmarried couples part ways can get complicated. As individuals involved in a non-marital breakup discover, there are legal remedies available to provide various forms of protection.
In British Columbia, individuals involved in the family breakdown of an unmarried couple should generally be looking at two sources of protection orders: There are specific needs for each of those sources and the protections offered under each differ.
A Family Law Protection Order is initiated under the Family Law Act. A Protection Order is sought when you need the specific requirement to protect you from threats, harassment, sexual or physical abuse, and in some cases, no contact with your former partner or former spouse.
Unlike the Family Law Act, there are no options for seeking a Protection Order under the Family Law Act (which does not apply to common law or unmarried couples), so parties must leave family law protection orders aside and seek an order at the Provincial Court under the Protection Order legislation, provided that the requirements under the Family Violent Protection Act are met.
Unlike the Family Law Act, the Family Violence Protection Act applications are not dealt with in the Supreme Court. Family Violence Protection Act protection orders are dealt with at the provincial court level.
What protection orders do, in addition to granting the above-mentioned protections, is they provide automatic, emergency safeguards and protection. You do not have to pay for registration with a court. The police already have that information stored electronically and can access it in case you need help.
Once you receive a Protection Order under the Family Violence Protection Act, it is important to notify the police that you have received an order and provide them with a copy (or a court file stamp copy) so that the protection order appears in their electronic records. I have cells in my phone that are with ‘911’ and ‘R.C.M.P (or local police)’ to program in a few clicks on my phone if I need immediate help.
There are no court registry fees to pay for either of the orders listed above under the Family Law Protection orders.
Protection orders (under the Family Violence Protection Act) are usually noted in every police department, border crossing and most government agencies. Even the courts respect the orders and take it very seriously when police call them for a court appearance if you breach the order.
As we discussed earlier, there are no court filing fees for either Protection or Consent Orders under the Family Law Act.
If you are getting a Consent Order under the Family Law Act (unmarried couple), that order has to be filed as a Certificate of Judgment which means you have to pay the court filing fees. However, if the Consent Order was filed into the Provincial Court where the order was made, the fee is around $40.
The Family Violence Protection Act, Protection Orders usually last for one year or until the order is rescinded (ended). You can request a court that the order be for a longer duration if there is a violent situation and/or you are in a very vulnerable state of healing from violent abuse. But you will need to show evidence to the court when you make that request.
Consent Orders under the Family Law Act (unmarried couple) have time limits. You can obtain a Final Order at any time after a period of time (1 month, 2 months, 3 months, etc.), but the order must be for a reasonable period of time – usually one year or less.
Consent Orders on money under the Family Law Act will have a specific date for payment and most importantly, the order will clearly indicate what will happen if the order is breached. If the payor misses a payment, the court will put a lien on their house, bank accounts, etc., which will automatically cause the Asset division part_time of the property division to be completed. The courts take Family Law Act division of property very seriously and strictly enforce the property division – distributive processes.
Theatrical as it may be, Protection Orders have a place within the system of breaking up when violence is present; but there are a variety of considerations and circumstances that have to be taken into account before an individual should go down the path of obtaining either type of order.
Resources for Emotional and Legal Support
Support groups can provide an environment where individuals who have been in a relationship as unmarried spouses can talk to others who have had the same experience. They can also be sources of information and direction for what steps need to be taken. At times, these groups will invite experienced family law attorneys to speak and answer questions. The availability of the Internet has broadened the search for support, such as sites for people who have experienced a breakup from a long-term relationship.
Legal Aid services generally provide aid to low-income individuals on a range of issues. Low-income people with children from their unmarried relationship may have access to Legal Aid , but they may not be able to get more than limited advice on child support or custody matters. However, it is possible in some states to obtain representation in a divorce case or a paternity case when a child has been born out of the relationship.
Local bar associations also are resources for aid, events, temporary matters and some professional networking opportunities. Often, they will provide a list of attorneys who may be willing to take pro bono (free) cases to obtain experience or to donate some of their time. This can be done online or by telephone. Bar association-sponsored networking events are sometimes also held.