Unmarried Couples’ Property Rights

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 What Governs the Property Rights of Unmarried Couples?

While the specific rules differ vary from state to state, the basic legal principles that regulate the property rights of unmarried couples can be described as stated below:

  • Laws governing married couples who divorce do not apply to unmarried couples who separate. Exceptions include unmarried couples residing in a state that recognizes common law marriage and who qualify under their state rules, or those who qualify as domestic partners in some states and;
  • Each unmarried partner is presumed to own his or her own property and debts unless you have deliberately combined your assets for instance, by opening a joint account or putting both names on a deed to your home. This differs from married couples, for whom any debt or asset acquired by either spouse during marriage will generally be considered jointly owned in the event of a dissolution. However, unless the parties signed a prenuptial agreement modifying these rules.

The legal presumption of independent property ownership of unmarried partners can change if there is a written agreement to share assets. In many states, a proven oral or implied-from-the-situation agreement to share assets can also be enforced by the courts. Where it is determined that an unmarried couple’s assets are jointly owned (for example, when both names are on a deed), the assets are considered to be owned in equal 50-50 shares.

The exception would be if there is proof of another agreement or, in some cases, where one partner made a greater contribution and can prove it. The property aspects of your dispute will usually be handled by the business section of your state’s civil courts, just as though you were going through a business dissolution. This implies that in most places you are not entitled to any special mediation services or expedited hearings, which are common in divorce court, unless you also have child custody or child support conflicts. These tend to be managed by the family law division of your local court.

In majority of the states, neither unmarried partner is entitled to receive any alimony-type support after a breakup unless there is evidence of a clear agreement to provide post-separation support. In some states this has to be a written agreement. Keep in mind that the fact that one of you supported the other one during your relationship or that you signed wills providing for each other upon death generally is not irrelevant to a claim for support.

Unless you can show that a contract to provide support after separation existed. For married couples, comparatively, if either party has been financially dependent on the other, or if one person earns significantly more than the other, the judge can order the higher earner to pay spousal support or maintenance.

If you are jointly raising children and you are both legal parents, you typically have the opportunity to cooperate together for a joint agreement without court intervention. But if you do get court involvement, the issues of custody, visitation, and child support will be dealt with similar to those for married couples. If only one of you is the legal parent (because the other parent did not adopt the child), in majority of the states the nonlegal parent will have no right to future custody or visitation of the child, and will have no duty to support the child.

What is the Importance of “Living Together” Agreements?

It is crucial that unmarried couples prepare written living agreements covering property, home, and other important issues. Doing this while your relationship is going well will help alleviate many of the problems if you ever break up. Keep in mind that properly written living agreements are legally enforceable in court. Most importantly, a written living together agreement can minimize the potential of even going to court.

If there is no written agreement, separation will be more difficult, particularly if you have lived together a long time, or big amounts of money or property is involved and your split is not amicable. In this case, consulting an attorney or financial adviser is useful. But in some aspects, unmarried cohabitation can be beneficial from a legal standpoint. Unmarried partners may define the terms of their relationship without being controlled by the state’s marriage laws that can restrict the marital relationship. When a relationship terminates, unmarried cohabitants need not follow strict procedures to end the living arrangement. Moreover, unmarried couples can avoid the “marriage tax” in the Internal Revenue Code that at times provides a greater tax rate for unmarried couples than it does for two unmarried individuals.

Furthermore, unmarried cohabitants do not reap benefits from the same rights automatically granted to married individuals, particularly with respect to property acquired during a relationship. Marital property laws do not apply to unmarried couples, even in long-term relationships.

Additionally, laws regarding distribution of property of one spouse to another at death, rights to take care of the property of the other during periods of mental incompetency, even visitation rights at hospitals, do not apply to unmarried couples unless extraordinary efforts are made to create and file various documentation that some states allow. Children of unmarried couples have traditionally not been afforded the same rights as children of married couples, but most of these laws have now been revised to avoid unfairness towards offspring.

A recent trend shows that among both heterosexual and homosexual couples who live together enter into contracts that provide rights to both parties that are similar to rights enjoyed by married couples. In fact, many family law experts now advise that unmarried cohabitants enter into such arrangements. Further modifications in the laws may also afford greater rights to unmarried partners who live together. However, such arrangements may become invalid in some states, particularly where the contract is based on the sexual relationship of the parties.

What Happens to the Property Rights of Unmarried Couples?

Unmarried cohabitants’ rights regarding the ownership of real property are determined by how assets are generally titled. Some partners may choose to own property as joint tenants or tenants in common. These are some forms of ownership in which two or more persons have an undivided interest in the real property.

The main difference between a joint tenancy and a tenancy in common is the right of survivorship. Therefore, the right of survivorship implies that sole ownership of the real property automatically passes to the surviving partner when the other partner passes away. Joint tenants carry a right of survivorship in comparison to the partners holding property as tenants in common that do not.

However, a tenant in common can transfer their property interest to the other partner through a will. If the tenant in common passes away without a will, their real property interest will instead pass under the statute of descent.

For instance under Maryland law, there is a presumption against joint tenancy. This means that documents, such as deeds, must expressly show that the real property is to be owned as a joint tenancy for it to be legally recognized as such. For example, the deed must explicitly state that ownership is known “as joint tenants.” Without this language present, ownership will be assumed to be a tenancy in common.

When Do I Need to Contact a Lawyer?

If you and your partner cohabitate together, and you are thinking about separating, do not assume that the marital laws of the states will apply to your relationship. It is important to seek out a local family attorney to determine the case for your unique situation.

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