Divorce When You’re Not Legally Married

A steady decline in divorce rates over the past two decades suggests that marriages are more stable today. Still, at the same time, a record number of people in the United States have never been married, according to an analysis of U.S. Census data from the Pew Research Center. In 2019, 33% of Americans ages 25 to 54 had never tied the knot. In 1970, for those between the ages of 25 to 50, the share was just 9%.

Also, research shows that marriage rates tend to drop during recessions. Following the COVID-19 pandemic, the percentage of never-married adults is likely to break new records.

What’s behind these trends? For starters, young adults are taking longer to get married. The median age for first-time marriages is 28 for women and 30 for men. By comparison, couples typically got married in their early 20s in the 1970s. What’s more, many couples today live together before—or instead of—marriage, due in part to changing societal views on marriage and co-habitation.

Of course, relationships don’t always work out, and partners who aren’t legally married can break up just like married couples do. When that happens, the process is typically easier than it is for married couples going through a divorce—especially if the partners agree on plans for the children (if they have children) and how to divvy up the assets. Still, you and your ex can end up in court if you can’t resolve your dispute amicably.

Here’s how splitting up works when you’re not legally married.

Property Rights of Unmarried Couples

When marriage ends in divorce, you get to keep the personal belongings that you came into the marriage with, plus your fair share of the marital property—everything that you acquired together during the marriage.

When unmarried couples split, the division of property works differently. You can still keep the items that you came into the relationship with, along with anything that you earned or bought while you and your partner were together. However, if you’ve deliberately combined your assets—say, by putting both names on the deed to your house—then that property is jointly owned in equal 50-50 shares. An exception may apply if one partner can clearly prove that they made a larger contribution.

Alimony for Unmarried Couples

If one spouse earns significantly more than the other in a marriage—or if one is financially dependent on the other—a judge can order the higher earner to pay spousal support (aka “alimony”) after divorce. It’s not the same for unmarried couples. Neither partner is entitled to alimony after a breakup unless there is proof of an agreement to provide post-separation support (aka “palimony”).

Custody, Visitation, and Child Support

Whether or not you’re legally married, a breakup can be infinitely more complicated (and painful) when children are involved. If you and your partner are both legal parents and jointly raising children, you may be able to settle on a joint agreement without court intervention. However, if you can’t agree and end up in court, then custody, visitation, and child support matters will be handled the same way as for married couples who divorce. However, if only one partner is the legal parent, then the nonlegal parent has no custody or visitation rights—and no duty to support the child.

Common-Law Marriage

Marriage is a legal union between two people. To be validly married in most states, a couple must buy a marriage license and have the marriage solemnized by a ceremony. Still, a few states recognize common-law marriage, which extends many of the same benefits as marriage without the license or ceremony.

Keep in mind that each state that recognizes common-law marriage has specific requirements. However, you must generally “hold yourself out to be married” by using the same last name, filing joint income tax returns, or referring publicly to each other as spouses.

The laws that govern married couples who divorce don’t typically apply to unmarried couples. One exception is if the partners live in a state that recognizes common-law marriage. In these cases, the property is divided under the state’s rules as if the couple were formally married.

Civil Unions

A civil union (sometimes called a “domestic partnership”) is not a marriage or a common-law marriage. Instead, it is a legal relationship between two partners that can confer rights at the state level, with no federal protections or benefits. Though created to allow same-sex couples to legalize their relationships, it is also available to heterosexual couples in lieu of marriage. However, some states stopped offering civil unions when same-sex marriage became legal.

Today, only four states—Colorado, Hawaii, Illinois, and New Jersey—allow couples to initiate new civil unions. Vermont still recognizes older civil unions, but it maintains separate procedures for divorce and civil-union dissolution.

Civil unions are not portable, which means they may not be valid when couples cross state lines. In most cases, you must file to terminate a civil union in the issuing state, and at least one partner must be a current resident. If you meet these requirements, the dissolution generally follows the same procedure as divorce.

It can be tricky to dissolve civil unions in states that don’t recognize them. In these cases, the partners may need to consult a local attorney to see if the civil union is recognized and determine the procedure to dissolve a civil union formed in a different state.

Living-Together Agreements

Living together as unmarried partners does not create a contractual relationship as it does for legally married couples. Still, as unmarried couples generally share finances and responsibilities, it’s a good idea to have a living-together contract or co-habitation agreement.

These legally-binding contracts outline expectations about property, assets, and finances. This can be a helpful way for couples to share intentions going into and throughout the relationship and protect each partner if the relationship ends.

FAQs

The Bottom Line

These days, it’s more common for romantic partners to live together before—or as an alternative to—marriage. However, when unmarried duos go their separate ways, the process works differently than it does for legally married couples.

If you and your ex agree on how to divide the assets, you probably won’t need to involve lawyers or the court system. If you can’t agree, however, then the property aspects of your split will likely be handled by the ordinary business section of your state’s civil courts. Disputes about child custody or support are generally handled by the family law division of your local court.