More and more couples today have chosen not to marry; indeed, demographers believe that in less than ten years more children will live in unmarried households than married households.
When a committed couple cohabitates and has children and raises a family together, but later decides to end the relationship, what protections are available to each of the partners and the children?
A few states still retain the concept of “common law marriage,” whereby couples that live together and act “married” will be deemed married under the law and subject to the same laws governing divorce. Missouri does not recognize common law marriage.
These couples likely mingled funds and purchased property together, and may have children as well. Can they untangle and divide assets and receive support as if they had been married?
With regard to the children, unmarried couples still can assert custodial rights. By filing an administrative support application with the Family Support Division of the Department of Social Services, one parent can assure a means of support from the other parent for the children. By filing a Petition for Parentage, Custody and Support in the family court, one or both parents can formalize rights of legal and physical custody to the children. So, in essence, a committed unmarried couple would proceed through the court system as if they had been married with regard to the custody and support of the children.
Property will require a different route. The Uniform Dissolution of Marriage Act only applies to married couples; committed but unmarried couples cannot avail themselves of the benefits of spousal support (maintenance) or the rules of equitable division for marital property.
But that does not mean that the couple has no legal recourse. Instead of filing in the family court, one partner could file a contract claim in the appropriate circuit court to enforce promises made between the partners with regard to ownership and payment of property. In fact, if one partner promised to continue supporting the other in some specific fashion after they separated, that promise might form the basis of “partner support.” Property titled in only one name could be subject to division based on agreements made between the parties. So, the partners are not without remedies – but the process may be more challenging and certainly less clear as to the outcome as compared to a typical divorce.
Committed but unmarried couples can protect themselves by preparing the equivalent of a prenuptial agreement, a contractual agreement of how to handle the distribution of assets, any payment of support and other issues in the event they separate. The documents need to be carefully drafted to assure their enforceability but to provide an additional means of protection.
If you have questions about issues involved in the end of a cohabitation with your unmarried partner, contact St. Louis family law attorney Jonathan Marks – he can help.