Forward Thinking Family Law Since 1994

Is It Easier to Break-Up a Relationship if You are Not Married?

A recent study found that 48% of newborn babies are delivered by unmarried women.  This and other studies shows that increasingly people are choosing to form intimate partnerships without benefit of marriage.  It is difficult to know what their motivation is.  However, there is some evidence that people are increasingly concerned by the 48% divorce rate among first-time married people and this is their attempt to avoid the difficulties of divorce.

But is it really easier to break-up when there is no marriage?  Not really.  Why?  Because marriage imposes a set of protections that on the couple and their children that   the law does not provide to unmarrieds.

1)  Parents.  Whether you are married or not both parents have an equal right to parent their children, absent a showing that either of them is negligent or abusive, provided  that it is proven that the child is biologically their child.  For the mother, it is easy to prove the biological link.  For the father, it is more difficult.  If the break-up predates the birth of the child, Dad can be barred from the delivery of the baby and denied parenting time right after the birth, until a court can examine the situation.  If Mom claims he is not the dad of the baby, the court may first require paternity testing to establish the link.  In contrast the married dad is presumed to be the father of the baby and will probably (absent extreme conflict) be allowed at the birth and to spend time with the baby immediately after the birth.

In some areas, unwed dads still find some discrimination against them in awarding parenting time.  There is still the theory that if you didn't marry the mom, you are less entitled than the married dad. 

2)  Property.  There are lots of differences here.

a)  Marital property.  Property that comes to the married couple during the marriage, including retirement savings, is presumed to be married property, that the couple will divide.  One exception is if it came by way of inheritance or gift from one family and was kept separate.  For unmarried couples, only property that is held in joint names will be divided.   Without proof of who paid for what property during the relationship, the person with the inferior records, or the stay-at-home partner who had lower or no income during the relationship can walk away with nothing.

b)  Social Security.  Couples who have been married for 10 years or more are eligible to share in each other's social security accounts.  Unmarried couples are not.

c)  Retirement.  Retirement contributions and appreciation, whether made by the employee or the employer during the marriage, are subject to division for married couples.  For unwed couples, the recipient of the retirement can keep it all.

d)  Health Insurance.  COBRA permits the married spouse to continue health insurance after the divorce for up to 3 years if that spouse is not eligible to receive health insurance benefits from their employer.  Unwed partners are usually not eligible to share in their partner's benefits during the relationship or after it ends.

3)  Spousal Support.  Under certain circumstances, the lower earning spouse is eligible to receive spousal support following the divorce.  Unmarried partners are not.

4)  Inheritance.  Divorce terminates the right of the married partner to inherit from the other, provided that the inheritance is not in the form of a trust.  Absent a trust or a will, the unwed partner has no rights to inherit from his/her partner.

It is possible for the unmarried couple to draft an agreement that addresses many of these issues.  However, in our experience, most do not.  If the relationship ends, there is significant inequity between the two partners to such a relationship.  The inequity can be extremely damaging to one partner.

Our society still favors marriage.  The laws at the state and federal level provide important advantages and protections for married couples that are not available to the unwed partners.  If you are considering whether to join in an unmarried relationship, consider talking with an family lawyer to educate yourself on the advantages and disadvantages.