issues addressed in this section are rather complex, and we encourage
you to carefully read the specific questions throughout the book which
relate to your specific situation. In this chapter, we address some of
the issues which concern unmarried heterosexual couples who
have been living together and want to separate and may or may not be
living in states which recognize common-law marriages; and gay men, lesbians, and transsexuals who have either been living in a same-sex relationship or who are legally married and seeking a divorce.
all of these situations, we encourage mediation because property
settlements and support arrangements may be necessary and state divorce
laws often do not apply.
have been consulted by separating heterosexual unmarried couples who
are shocked to discover that there is no such thing as a common-law marriage
in their state. The original purpose of legalizing common-law marriages
was to offer couples the protections and benefits of legal marriage
when it was difficult to get married because of the long distances
clergy would have to travel to perform weddings. In recent years, with
the increasing number of couples living together without necessarily
intending to get married, most state laws have been changed and no
longer recognize common-law marriage.
this chapter, we explore ways to establish that you have a common-law
marriage and tell you where it may be recognized. If you can establish a
legal marriage, you will have to follow all the rules of the state
concerning divorce and you will be able to use mediation to reach a
Unmarried heterosexual couples who do not have common-law marriages
encourage mediation for unmarried couples who do have common-law
marriages because courts are seldom available to resolve issues through
litigation These issues can be mediated between the two of you. However,
you should be aware that even if you have a written contract with each
other about property and/or support issues, some judges might void the
contract if one of the partners petitions the court to have it
invalidated, interpreting it as a contract for sexual services.
good news is as long as you act in good faith, your contract will
remain as you intended, and in many jurisdictions it will be considered
an acceptable basis for the purpose of settling property and support
issues. Issues covered in these contracts might include loans, family
gifts, the purchase of homes and furniture together, the responsibility
for debts, and repayment to one of you for giving up a career to move.
in 1996 the Defense of Marriage Act severely limited benefits to same
sex domestic partners, each year thousands of same sex couples continue
to exchange vows in religious ceremonies performed by sympathetic
lawsuits are under way in several states to determine whether same sex
couples have the right to marriage licenses, civil marriages, and
specific domestic partnership rights. At the same time, in the last few
years, at least 28 states have prohibited gay/lesbian marriages.
you or your spouse are divorcing because one of you is changing life
styles, there may be emotional as well as legal issues to consider. This
may be a time when one or both of you are suffering feelings of
abandonment, betrayal, and anger. These feelings may create barriers in
making the best financial and parenting plans for the future. Mediation
will be particularly helpful for you since you can address both the
emotional and legal aspects of your separation.
Of course, married or not, if you have children and you and your partner are both
recognized as the legal parents of your children, your state’s child
support guidelines will be available to use as a basis for your
financial and parenting arrangements. However, you will probably still
need to negotiate all your other financial issues through private
mediation. If only one of you is the legally recognized parent, things
are more complicated.
conclusion is that for an unmarried couple who is ending a
relationship, the best way to proceed is almost always to use mediation.
In addition to reading this chapter, we encourage you to read the other
parts of this book, since you will have many similar issues to resolve
psychotherapist and mediator, Carol Butler (PhD) is a practitioner
member of the Academy of Family Mediators. She is the co-author of The Divorce Mediation Answer Book.
Co-author Dolores Walker, M.S.W., J.D. is a psychotherapist and
attorney, specializing in mediation. She is a Practitioner Member of the
Academy of Family Mediators.