Common Law Marriage
Depending on your circumstances and the state you’re living in, you may be able to petition the court to recognize you and your significant other as married when making post-break-up arrangements such as who’s getting the car, the house, etc. However, states generally require you to petition the court to recognize your relationship as a common-law marriage. The idea that you’re automatically considered to be married after living together for a certain period of time is a myth. Generally, you have to meet a certain set of requirements in order to qualify for a common law marriage, and not every state recognizes common law marriages. If you are in a state that recognizes common law marriages, and the court grants your request to have your relationship recognized as a marriage, the debt and property division will proceed as if you and your significant other were legally married. The court will also have to determine when the relationship became a “marriage” as that will play a significant role in determining what is included in the marital estate and subject to division by the court.
What happens to the house will depend on multiple factors: Does the couple qualify for their relationship to be recognized as a common-law marriage? Are both names on the mortgage? Are both parties contributing to the mortgage payments and maintenance of the house? If the couple meets the necessary requirements for their relationship to be recognized as a common-law marriage, the house will be divided as if the couple were legally married. However, if the couple doesn’t meet the requirements for a common-law marriage, then it will depend on whether or not both parties are on the title. If both parties are on the title, both people own the property. In this situation, both parties will usually need to agree on what happens with the house. If they cannot agree, they may need to hire an attorney and/or go to court to determine what will happen with the property. If the couple bought the house together, but only one name is on the title, things may get a bit messy. The party who isn’t on the mortgage may have an interest in the house, especially if they helped make payments, or financially aided the house’s maintenance, repair, or improvement.
It’s not uncommon for couples to buy a car together with an agreement that they’ll both pay for the car. As with the house, the car will be divided as if you were married, assuming your relationship meets the requirements needed for a common-law marriage. If both names are on the car, then you both own the car. This means that the car cannot be sold without both parties agreeing to the sale. It may also mean that both parties are responsible for the licensing and insurance of the car. If your ex is on the title, you will need to get them to sign the car over to you. If there is equity in the vehicle (meaning it’s worth more than what is owed on any loans for the vehicle), you may be ordered to “buy them out” and/or refinance the loan in order to get their name off the title. If your ex isn’t on the title, they may still be eligible to receive a payment for a portion of the equity in the vehicle. Likewise, if the vehicle is “under water” (meaning the amount owed is greater than the value of the vehicle), the party not keeping the vehicle may have to pay a portion of the negative equity. This is the difference in the outstanding loan amount and the value of the vehicle.
Debt will typically be divided by whose name is on the debt, whether it’s a credit card or some other type of loan. This is especially the case where the court doesn’t determine there is a common law marriage. So if you and your ex share a credit card, but your name is the only name on the card, your ex is not likely to be responsible for the debt on the card, even if they were the one who ran up the debt. The aforementioned is not necessarily true in cases where the ex is an authorized user. The same is true for personal loans. Furthermore, the court does not generally recognize verbal agreements as legally binding. If the court does determine there is a common law marriage they can divide the debts that are determined to be “marital”.
Unlike the other items, custody is not determined by whether or not you were married. The only difference is that there’s no presumption of paternity. This means that the biological father of the child will need to prove that they’re the father by taking a DNA test if the other parent contests the paternity of the father. If you are ordered to take a paternity test, you cannot decide not to take a paternity test. Assuming both children are the biological children of the parents, the courts will determine a custody arrangement based on the best interests of the children involved. In most cases, it’s in the children’s best interests to have a relationship with both parents. Assuming both parents are willing and capable of being involved in the child’s life, each parent will get some level of physical and legal custody. Child support will be calculated the same way, regardless of whether or not you were married.
Debt will be divided by whose name is on the card or loan. So if you and your ex share a credit card, but your name is the only name on the card, your ex is not likely to be responsible for the debt on the card, even if they were the one who ran up the debt. The aforementioned is not necessarily true in cases where the ex is an authorized user. The same is true for personal loans. Furthermore, the court does not generally recognize verbal agreements as legally binding.
“What If We Don’t Want to Get Married?”
If you are making big purchases together, and you are not married, it is likely in your best interests to have a contract with very specific terms dictating what happens to the asset in the event of a break-up. An attorney who’s familiar with contract law can help you draft a contract that will protect your interests. If you’ve gotten married, or if you qualify for a common-law marriage, CoilLaw is here for you. Whether you’ve got questions about a prenuptial agreement, postnuptial agreement, or common-law marriage, CoilLaw can help you protect your rights. Contact us today to set up your initial consultation.