The 4-1-1 on Common Law Divorce

It is increasingly common for couples to cohabit without marriage paperwork. You can share a household, finances, real property, debt, assets, and children without getting a marriage license. However, when your relationship ends, dissolving the ties that bind you can be more complicated simply because you never said, "I do."

Marriage Alternatives

Some states have common law marriage laws that recognize a couple as married if they meet certain conditions, even if they never received a marriage license. In general, these states require the couple to have lived together as husband and wife (same-sex couples are not included) for a period of time (usually ten years) and hold themselves out as a married couple (essentially refer to each other as spouses). 

Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah allow common law marriage. Several other states recognize it only in relationships created before specific dates. New York does not recognize common law marriage, so no matter how long you and your partner have lived together or acted as spouses, if you didn't get legally married, New York does not consider you to be married and you cannot get a divorce.

Some states have laws permitting civil unions or domestic partnerships. Many of these laws were put into place before same-sex marriage was legal and remain on the books. In these instances, there is a legal dissolution process available to end the relationship. New York, however, does not provide an option for this kind of partnership. 

Custody and Child Support

Child custody and support is one part of a relationship that is handled the same, whether you are married or unmarried. Not being married does not impact or change parental rights. Custody is determined based on what is in the best interests of the children in every circumstance. The only difference is that instead of having the custody and child support case determined in New York Supreme Court as part of a divorce, custody and child support are handled in New York Family Court. The same laws and standards are applied in both courts. 

One wrinkle to keep in mind is that legal paternity must first be established before custody or child support can be determined. When a couple is married, children born into the marriage are legal children of both spouses. However, when a couple is unmarried, paternity must be established by an acknowledgment of paternity or a previously handled adoption. If there is disagreement about paternity, a petition must be filed to request a legal determination.

Clients may wish to consider the use of a private judge to resolve their custody and child support cases. Family court is a highly visible and highly populated venue. Agreeing to arbitration handled by a retired judge is a much more private way to have your case heard and resolved. 

Assets and Debts

Any assets and debts in your separate names will remain separate as you dissolve your unmarried relationship. The only exception to this is if the couple has a written cohabitation or non-marital agreement (similar to a prenuptial agreement) to share assets and debts in their individual names. One benefit of not being married is that you can't be held responsible for your partner's debts, which is the case in a legal marriage. 

Jointly owned assets and debts are presumed to be held with a 50/50 ownership stake by both parties unless there is a written cohabitation agreement to the contrary. In some instances, if it can be shown that one partner made a larger contribution to the property than the other, the distribution could be skewed based on those facts. 

So, for example, if you and your partner bought a home and are both listed on the deed, it is treated as if you each own half. However, if you provided most of the down payment or purchase price or paid a large portion of the mortgage payments, then a court could divide the asset in an unequal way, awarding you a larger portion of ownership.

Asset division in an unmarried break-up can be challenging because it can be tricky proving who paid for certain items, whether joint funds were used or whether one spouse paid the other for their share. In these situations, it is essential to have skilled legal representation so that all documentation can be discovered and amassed to you’re your case. 

Another layer of difficulty in these cases is that if they cannot be negotiated, they go to court and are heard by judges who do not usually hear family and divorce cases and are not as experienced in handling the nuances inherent in cases that involve the end of a domestic relationship. The best way to handle this is to work with a private judge through an arbitration setting. 

Occupancy of the Home

If you and your partner jointly own a home, the legal presumption is that you own it equally. This means that in order to obtain occupancy of the home during or after the break-up, you must buy out the other partner's half. There is another albeit temporary solution. In New York, if you file for and receive an order of protection, the court can give you exclusive occupancy of the home you share, even if you are not the owner. This lasts for the length of the order of protection, which can be up to two years. Obtaining occupancy changes your negotiating status and changes the tenor of the discussion.


New York law does not allow alimony for domestic partners. You may have heard the term "palimony," which was established in a famous case in California, Marvin v. Marvin. Palimony is a doctrine that there is an implied contract that the moneyed partner will provide support for the non-moneyed partner after the end of a domestic relationship. New York does not allow palimony in this implied contract situation. However, New York does allow support when there is an explicit written cohabitation agreement establishing a plan for it. 

Dissolving a non-marital domestic relationship can be more challenging than a regular divorce, but with adept legal representation, you can reach a beneficial outcome. 


Dror Bikel

Dror Bikel co-founded Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

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