There have always been those couples who decide, for whatever reason, not to get married. They continue to live together and build a life together without the formality of marriage. So, what happens when a relationship like this breaks down? Doing what I do, I do not like to judge, just deal with the facts and issues before me, trying my best to help the person sitting across from me, and lead the client out of the unfortunate situation he or she is facing.
When the person has done everything a married person would do had he or she gotten married, except for getting married, it is a difficult situation in that the various legal protections available to a married person are not there for an unmarried person. Certainly, child support is available to the unmarried person with primary physical custody of any children of the relationship, as well as the child custody system. There is no requirement of marriage for an individual who is not married, to avail him or herself of those two arms of the court system, but what about the economic relief available under Pennsylvania’s Divorce Code?
Obviously, someone cannot get divorced if they were never married; but is there anything that person can do to untangle and financially separate him or herself from their domestic partner? The concept that comes to mind is something called “partition.” Partition is the legal process of dividing interests in a piece of property, either real or personal property, such that separate interests are created out of the whole.
For example, suppose two unmarried people buy a house together, each put up $50,000 of the $100,000 down payment and have the house jointly titled. They have two children but never get married. In the event they split up, they both have a right to equity in the house but, since they never married, they cannot get divorced and cannot proceed in equitable distribution. So, what do they do?
As a practical matter, they have two options, the first is mediation or some form of alternate dispute resolution, and the second is to file a legal proceeding called an action in partition. Mediation is voluntary and both parties need to agree to participate and abide by any mediated resolution. I often suggest mediation to unmarried people facing a separation. Partition, on the other hand, is not as holistic an option as mediation and does not factor in the overall contribution to the relationship as equitable distribution would. Partition focuses more on the financial contributions to benefit the joint property, so partition benefits the party in the financially superior position. It is just not as good a remedy as equitable distribution, but it is something and maybe the only alternative.
Using my equal contribution to the residence example, above, the property would need to be appraised and then the equity divided between the two parties with either one side buying out the other or the property being sold and the proceeds divided.
Similarly, if the two parties owned a business together, while there are former couples who do not mind being business partners together, that situation is probably more the exception than the rule. There is a concept known in the legal world as a “business divorce,” and that process is similar to a partition action except the procedures are slightly different. There may be a partnership agreement or corporate bylaws that specify what happens if a partner or shareholder wants out, but that is not necessarily the case in every situation. Again, not equitable distribution, but an available legal remedy.
Another issue concerns employee benefits like employer sponsored retirement accounts and other benefits like health and life insurance. Federal law does not recognize domestic partners the same way it recognizes spouses, but some progressive employers may have more liberal policies. Again, none of this is as good an option as equitable distribution; however, at the very least, these are options worth exploring.
So, can a family law attorney help you if you were never married? The answer is a qualified “yes.” For issues of child support and child custody, your rights are the same whether you are married or not. In terms of splitting up assets accumulated during the relationship, which is a much more difficult scenario, but there are limited remedies available.
[View source.]
