What Happens If Domestic Partners or Unmarried Couples Decide to Split?
In the United States, according to the 2010 census, 7.5 million couples are living together without being married. Some of those couples obviously reside in the state of Georgia. Unmarried couples who live together are not afforded benefits that are generally afforded to spouses, like healthcare or retirement benefits. If one has a medical crisis, the other is not considered next of kin and will not be the one to make important healthcare decisions.
If an unmarried couple, who are not legally domestic partners, decides to split up, they still need to make the same decision as divorcing couples. But, different rules apply. Obviously, the divorce laws do not apply to these situations. However, the Court has certain equitable powers to resolve these often complicated scenarios.
Unmarried Couples Who Have Children: Establishing Paternity, Custody & Support
In the instance where an unmarried couple has one or more minor children, the mother has sole legal and physical custody until the Court issues a final order of legitimation. Yet, the father may still be required to pay child support through the Division of Child Support Services.
If father wants to obtain a final order establishing custody, parenting time and child support, the father must file a petition for legitimation in the Superior Court of the County in which the mother or the minor children live. The Court must then establish paternity by:
- Court ordered DNA testing.
- The mother and father execute written and notarized documents admitting to paternity.
- The mother and father admit to paternity in open court.
Once paternity has been established, the Court will decide custody, parenting time and child support for the minor child or children. This determination will be based upon the best interest of the child or children. The same 17 factors the Court considers when determining custody between divorcing parents will be applied to determining appropriate custody of children of unmarried parents.
Unmarried Couples and Property Division
In the instance where an unmarried couple has real or personal property that was brought into the relationship, or was acquired during the relationship, the property must be divided. For divorcing couples, this is known as equitable division of property. If there are existing documents or other evidence proving an unmarried couple owns property together, it will be divided through a process known as “Equitable Partition of Property.” This legal process is derived from O.C.G.A. §44-6-140 and the Supreme Court of Georgia’s opinion in O’Connor v. Bielski, issued in 2010.
Division of real property
If both parties’ names appear on a deed, the value of the property will be partitioned between them. In O’Connor, real property owned jointly by an unmarried couple was sold. The court initially divided the proceeds in half and then adjusted the amount awarded to each party based on the expenses each had incurred and rents one party had received that had not been shared with the other.
Division of personal property
In a divorce situation, all assets accumulated by the couple during the course of the marriage are considered marital property. This includes the furniture, art work, vehicles and even pets. When they divorce, the court evaluates the value of the property and divides it equitably, which is in a manner the court deems fair.
When an unmarried couple separates, there is no divorce process so no court involvement in the division of the personal property acquired by the couple during the course of their time living together. If the couple has a contract specifically delineating which one of them owns the property, or how they believe the ownership of the property is determined, the court will generally honor the contract. Otherwise, the couple is on their own. Although they may end up fighting in court over the ownership of certain property items, it will be through a purely civil or equitable claim.
If one party in the unmarried relationship contributed inheritance money to a joint account, the Court will likely return the inheritance money to the person that inherited it. The same is generally true of money awarded one party in a personal injury lawsuit. The award will be considered the personal property of the injured person.
Neither party will be entitled to alimony following the split. A request for alimony is limited to divorcing couples.
If you are separating from a domestic partner or a partner with whom you have been cohabiting, you need to protect your financial and parental interests. Contact an experienced family law attorney who will answer your questions and provide you the guidance you need. You may contact Georgia Trial Attorneys at Kirchen & Grant, LLC for a free consultation.