There is so much confusion around family law and all the different ways that cases can come up. Sometimes, it’s a matter of divorce; in othercases, it’s just custody. It’s seldom the question of something seemingly simple – like an annulment – but it is possible that you could just breakup, if you were never married and don’t have any kids in common. That may or may not be a lot of comfort to you, especially if – as manycouples do – you shared expenses and worked together towards common financial goals, regardless of your marital status.
Many unmarried couples buy houses and cars together and make big decisions, like whether one party should work less or even stay at home completely, after the birth of a child. Though marriage means that you have additional legal protections (though it may not feel that way when you’re actually *going through* the divorce), that is often all the more apparent to the couples who have combined finances but not walked down the aisle.
Obviously, though – as I am sure you already know – if you are not married, there is no need to divorce.
Yay, right? Well, maybe. You don’t have to go through the whole, drawn out, legal process of divorce, but you likely won’t have much assistance from the law or the courts when it comes to parceling out your belongings. You may have issues, especially if you paid together towards a large asset like a home, in determining what property belongs to whom. You may find that you contributed to things that are not yours and of which you cannot recover your share. And retirement? Forget about it. Unless you are married, what’s his is his and what’s yours is yours, even if what’s his is his because you worked to make it so (or what you earned was significantly less).
You will likely find that it mostly matters whose name the assets are in, rather than who contributed. If the house is in his name, it’s “his” house. You may be able to recover a portion of what you put in, especially if it was big things, like a down payment. But smaller expenses, like paying utilities, will not count for much.
No divorce doesn’t mean no custody case, though.
You’re not entirely free of the family law system, though. No divorce, but if you have a kid or kids in common, you may still have to work through custody and visitation.
For most families, this is just a matter of working out a custody agreement that specifies exactly how you’ll share your coparenting responsibilities. The best agreements I’ve seen include a lot of details because, like the foundation for a house, your entire coparenting relationship will be built on it. For others, though, the bare minimum suffices, either because they’re super low conflict or super high conflict. (Conversely, these two demographics often end up with the same results – one because it’s all that’s needed and, for the other, because they’re counter parenting and the bare minimum was literally all they could agree on.)
For the rest, there’s court.
Divorce cases – whether there are no children or whether there is also an underlying custody component – are handled in the circuit court.
Custody cases, whether they are initial determinations or modifications of previously entered orders or agreements, are handled in the juvenile court. Custody cases that do not involve divorce don’t go to the circuit court unless they are there on appeal (which is an automatic appeal of right and gives you a de novo – or brand new – trial).
In juvenile court, the judge can determine who has custody and what type (whether primary, shared, or split physical and sole or joint legal custody), how visitation will be exercised, and what child support will be. This often involves a Guardian ad litem, too, who is an attorney appointed to represent the child’s interests to the court.
Keep in mind, too, that custody can be determined once – as it likely will be around the time that you make your breakup truly final – but it can also be modified again and again over time. The key here is that custody and visitation is based on the “best interests of the child,” and this is What’s best for a five month old is not the same as what’s best for a five year old which is not the same as what’s best for a fifteen year old. We know this, but we often don’t think how, for many coparenting families, this may trigger many resets to or modifications of existing custody orders and/or agreements.
There’s no such thing, when you have kids, as just breaking up and riding off into the sunset. You’ll have to show up with and coparent alongside your ex-boyfriend for the duration of your (and your child’s life). Birthday parties, graduations, weddings, grandchildren – so many life events will involve your soon-to-be ex boyfriend over the span of your lifetime(s).
That’s not to sound ominous or threatening, but to encourage you to grab the proverbial bull by the horns, so to speak, and get a good foundation in place now. There are so many feelings surrounding a breakup, especially if you’re breaking up for cause (like because he cheated or lied or something else profoundly hurtful), it can be hard – in the short term – to get it all under control.
The better your custody agreement now, though, the more you’ll move forward into your happily ever after with peace and clarity.
For more information or to register to attend our upcoming custody seminar, give our office a call at 757-425-5200 or visit our website at hoflaw.com.
