- Unmarried Couples -There are many reasons why individuals choose to partner and raise children together outside of marriage. The couple may be a gay or lesbian couple, or they may simply not wish to be legally married for financial and/or personal reasons. If and when the time comes for these individuals to separate, however, the playing field for resolving disputes over money and children is different than in a traditional divorce. Custody/Visitation: The biological mother of a child born out of wedlock is presumed to have sole legal and physical custody of the child. Fathers of children born out of wedlock who want involvement should sign the Voluntary Acknowledgement of Paternity at the hospital when the baby is born and obtain a certified copy. This will eliminate the need for blood tests and resolve the question of paternity without delay (which also means that child support could be ordered). The lesbian partner of the biological mother may wish to adopt the child to pave the way for court-ordered custody and visitation orders. These preliminary steps establish the legal relationship of the other parent to the child. Beyond that, regular and productive involvement in the child’s life will support ongoing involvement after the parents separate. Alimony/Palimony: In the Commonwealth of Massachusetts, there is no law that provides for one party paying the other alimony if the parties were never legally married. A mother, therefore, who has stayed at home with her child for 10 years and finds herself out of the relationship, cannot seek alimony to compensate her for the fact that her earning power is lower due to the years that she supported her partner’s career and raised the child. Property Division: In the Commonwealth of Massachusetts, the divorce laws regarding division of property do not apply to partners who are not legally married. Instead, issues of property division are resolved according to who has title to the property. It is therefore important to think about how assets are held. If a man and a woman live together for many years and the woman is the sole owner of the house, upon her death, unless she has provided that the man will either have a right to continue to live there or she leaves the house to him in a Will, he may find himself homeless, even if he invested certain monies in that real estate. There is some case law that may support his right to a “constructive trust” in the real estate, but it’s an uphill battle. It is critical, therefore, for unmarried couples to be thoughtful about how they hold their assets and plan for their futures. Seeking independent legal advice before purchasing major assets together is prudent, as it would be if two individuals began a business relationship. Attorneys can help draft agreements to spell out what will occur should the parties separate. Summary: Individuals who are part of a non-married couple should think carefully as they make financial, child-related, and other life decisions together. Ideally, both parties should have separate attorneys to advise them through the process. While this pragmatic approach may not be very “romantic,” it can avoid some of the pitfalls that individuals face when they separate.
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