Getting started, Legal (Custody, alimony & support), Separation & Divorce, Tips & Lists

Legal Issues When Unmarried Couples Separate With Kids

What happens when things don’t work out? If you aren’t legally married, you still may have legal issues to address while transitioning into co-parenting.
(3 min 7 sec read)

Dave Chartier
A single co-parenting dad, a freelance writer and former syndicated dad blogger with work published in USA Today, Washington Post and the Wall Street Journal.

It is becoming increasingly popular for couples to forego marriage but stay in committed relationships, have children and settle down. But, what happens when things don’t work out? If you aren’t legally married, you still may have legal issues to address while you transition into a two home, co-parenting relationship.

Family/marital law governs married couples who divorce but does not apply to unmarried couples who separate with exception to unmarried couples living in a state that recognizes common law marriage who qualify under their state rules, or those who qualify as domestic partners in a few states. It is worth taking a moment to debunk the ‘7 Year Myth’ for common law marriages. Most people still believe couples who have lived together for seven years automatically fall under common law marriage laws. This simply is not true.

The current list of states that support common law marriages1 are;

  • Alabama
  • Colorado
  • District of Columbia
  • Georgia (if created before 1/1/97)
  • Idaho (if created before 1/1/96)
  • Iowa
  • Kansas
  • Montana
  • New Hampshire (for inheritance purposes only)
  • Ohio (if created before 10/10/91)
  • Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
  • Pennsylvania (if created before 1/1/05)
  • Rhode Island
  • South Carolina
  • Texas
  • Utah

The current list of states that accept domestic partnerships2 are;

  • California
  • Oregon
  • Maine
  • Hawaii
  • District of Columbia
  • Nevada

If your situation falls into common law marriage or domestic partner laws you will have to sort through the process of a clear division of shared assets (property, business, etc.) and debt. To be clear, these are assets that are explicitly shared, like jointly shared investments (co-signed). Whereas, there is a common legal presumption of independent property ownership if there is a single signer (property/assets) in the case of an unmarried union unless otherwise stated by state law. The property aspects of your dispute will generally be handled by the ordinary business section of your state’s civil courts.

In the case of unmarried couples with children, there are certain situations to be aware of. Normally legal unmarried parents have the opportunity to work out a joint agreement without court intervention. But if you end up in court, the issues of custody, visitation, and child support will be handled just as they are for married couples.

If there is only one legal parent because the other parent did not adopt the child, in most states the non-legal parent will have no legal custody or visitation rights, and will have no duty to support the child.

This points to a growing trend that unmarried couples are doing, creating a ‘Living Together Contract’ (LTC). It’s similar to a prenuptial agreement in that it predetermines ownership of respective assets pending a breakup. An LTC usually does not include issues regarding child custody, not to say it could not, especially if you have come together with children in tow.

Regardless, if you are unmarried with children and in a common law marriage, domestic partnership or civil union -know what falls into the category of a legal issue especially when it comes to issues of custody and visitation of your children. Understanding you may not need to make a legal case but you still need to work through co-parenting issues. Download coParenter, get your co-parent on-board or go solo. You can tap one of our many coParenter Professionals to help resolve any of your issues. We will help you save thousands in legal fees and keep you out of the court system for non-legal co-parenting issues.


  1. Common Law Marriage Fact Sheet | Unmarried Equality
  2. Same-Sex Marriage, Civil Unions, and Domestic Partnerships | FindLaw

Related Articles: