Shownotes
You lived together. Shared a home. Built a life. But you never got married.
Now it’s over. What are you legally entitled to? Can you keep the house? The car? The dog? What if your name isn’t on anything?
This episode of The Best of Johnston County Podcast answers the questions no one asks—until it’s too late.
Because when the breakup hits, love isn’t the law… paperwork is.
Transcripts
And in this episode, our social media coordinator, Raena Burch, asked me, Jonathan Breeden about the legal rights of unmarried couples. When they separate, we talk about their rights to property, we talk about their rights to houses. We talk a little bit about. What happens in a custody situation and child support when an unmarried couple separates?
And we also talk about why you should have a cohabitation agreement if you're gonna be living together out of wedlock and you're gonna be having any kind of significant assets whatsoever. So it would determine what happens if and when you were to separate in the future. So if you've been in a situation where you've been living together.
With somebody out of wedlock or you know, somebody that is, I think you will find this episode educational and entertaining as we had a good time recording it, so listen in.
nston County, brought to you [:Jonathan Breeden: Hello and welcome to another edition of The Best of Johnston County Podcast. I'm your host, Jonathan Breeden. And on today's episode, we're gonna have a special edition episode that we call Ask Jonathan Anything where our social media coordinator, Raena Burch, you're gonna ask me Jonathan Breeden questions about the legal rights of unmarried couples.
ohnston County Podcast comes [:So go back and listen to some of our previous episodes with lots of interesting community members, including County Commissioner Butch Lawter, the County Parks Rec Director, Adrian O'Neal. Now Congressman Brad Knott. We've had a lot of interesting people, and if you love Johnston County as much as I do, this is the podcast for you.
And on most episodes, I, Jonathan Breeden interview interesting community members. But every once in a while we do one of these special different episodes where I, I answer questions that we get here about family law, which is what we do here at the Breeden office. Welcome Raena.
Raena Burch: Hi, how are you doing?
Jonathan Breeden: I'm doing good. Doing good.
Raena Burch: This all right.
Jonathan Breeden: This will be interesting. Could be we could do 10 episodes on this.
Raena Burch: I'm sorry.
Jonathan Breeden: So we probably will, as podcasts have to keep coming out every week.
Raena Burch: Yes. Right. So most of the podcast episodes that we've done before this, we've talked about obviously divorces, married couples, property separation and all of that.
riage isn't. What it used to [:Jonathan Breeden: That is true.
Raena Burch: So first question is what legal rights do unmarried couples have when they separate?
Jonathan Breeden: Well, they have the legal rights to what they own.
Raena Burch: Okay.
Jonathan Breeden: And that's about it. In North Carolina. North Carolina does not recognize common law marriage. Some states, if you live together and hold yourself out as a married couple for seven years, you are then considered married. I think they have that in South Carolina. I think they have that in Colorado.
We do not have common law marriage in North Carolina. The only way to be married in North Carolina is to actually go get a marriage license at your county register deed's office, get married in front of a minister, or justice of peace or somebody like that with vows.
Raena Burch: Mm-hmm.
Jonathan Breeden: And with a couple witnesses, right?
Raena Burch: Yep.
Jonathan Breeden: I mean, you know, and you get married, go to courthouse, get married tomorrow.
Raena Burch: Very traditional. Yes. Right.
but no they have the rights [:Raena Burch: mm-hmm
Jonathan Breeden: and they, and they both are on the deed, then they're a half owner of the house they live in.
Raena Burch: Yep.
Jonathan Breeden: You know, so the main thing is. The marital laws and the sort of community property
Raena Burch: mm-hmm
Jonathan Breeden: of everything that the marriage a masses belongs to both of you, regardless of the title, regardless of how it's titled
Raena Burch: mm-hmm
Jonathan Breeden: does not apply in an unmarried situation.
Raena Burch: Got it.
Jonathan Breeden: Okay. So if you and I are married and you own a car in your name, I'm half owner of that car. If you bought that car during the marriage, because you got it during the marriage.
Raena Burch: Yes.
Jonathan Breeden: Even though it's titled in your name solely.
Raena Burch: Mm-hmm.
, or you and I are making an [:Raena Burch: Yep.
Jonathan Breeden: In a piece of property or whatever we are, you know, if we're both on the deed, we're joint tenants.
Raena Burch: Got it.
Jonathan Breeden: And then there's, you know, we could talk about real property law and stuff like that, but the trick is if you're both on the deed to the house.
One side cannot go and evict the other side. There is no lease. And even if only one person's name is on the deed of the house, if the boyfriend or the girlfriend are living there and there is not a lease, and you break up and they won't leave. You can't really go evict them with a magistrate because there was no lease.
Raena Burch: Mm-hmm.
Jonathan Breeden: For them to be there.
Raena Burch: Yeah. For them to break.
Jonathan Breeden: For them to break.
Raena Burch: Yeah.
you don't agree to sell it, [:Would be to try to force a partition by the clerk of court where you would file a partition to partition with the clerk of court and the county where the property's located and the county clerk court would send somebody out to see if the property could be equally divided. If it's a house, it cannot be no, and if they cannot equally divide it, then the clerk of court will order the house sold on the courthouse steps.
Literally they do it every day when I'm at the courthouse.
Raena Burch: Oh, wow.
Jonathan Breeden: They're always selling houses.
Raena Burch: Who knew?
Jonathan Breeden: Right. And they're like, they're taking bids. Just like,
Raena Burch: like an auction?
Jonathan Breeden: Like an auction. That's exactly right.
Raena Burch: Wow.
Jonathan Breeden: So now not every house gets bid on because you can only buy the house if you can pay off the lien holder.
So you gotta bid more than the mortgage.
Oh, okay.
Raena Burch: Ooh
Jonathan Breeden: In order to get it. 'cause you can't get a clear title otherwise.
Raena Burch: Yeah.
Jonathan Breeden: So,
Raena Burch: and is it, is it like sight unseen? Like you don't know, sometimes you don't know what you're buying, that
Jonathan Breeden: you, [:Raena Burch: Oh wow.
Jonathan Breeden: Yeah. So you can look it up, you can drive by it. Let's see what permits got pulled. You know, some smart buyers go knock on the door and ask people, they can look around and they'll let 'em. Yeah. So, I mean, there's different things about that but you do not have rights and anything basically long and short if you're unmarried. You don't have rights in anything that your name is not on.
Raena Burch: Got it.
Jonathan Breeden: And so, you need to keep that in mind. And you know, and I, right. And I don't care if you've spent $5,000 of your money putting in a new floor in his house. That's his house.
Raena Burch: Yeah. You're not getting that back, right.
Jonathan Breeden: If your name's not on that title. Yeah.
Raena Burch: So, would you recommend everybody, no matter how long they've been in a relationship, keep receipts, keep your receipts of like the couches and the.
metimes they co-mingle their [:But you can't just go to domestic court and have the court divide up the couch in the refrigerator and the washer and dryer. I mean, you'd end up probably having to go to a magistrate and claim, you know, file a claim for failure to return property. Where you would've to convince the magistrate that this property was yours and now the other side will not give it to you.
Raena Burch: Okay. Okay. So yeah, like you said, only domestic court applies to married couples.
Jonathan Breeden: When it comes to dividing property.
Raena Burch: When it comes to dividing properties.
Jonathan Breeden: One of the other big things is you're not entitled to alimony or post separation support when you've only been living together. And so I can't tell you how many times somebody has come into this office.
% dependent on [:Raena Burch: Her yeah, partner.
Jonathan Breeden: And there's, I can't get her any post service or alimony. If there's children, I can get her child support.
Raena Burch: Yeah.
Jonathan Breeden: But I can't get her any support above that. And child support's not gonna get your bills paid?
Raena Burch: No.
Jonathan Breeden: I mean, it's just not no, no, no. It'll, It'll help a little bit.
Raena Burch: Yeah.
Jonathan Breeden: But it's not gonna, it's not gonna get your bills paid.
Raena Burch: No.
Jonathan Breeden: And so that is you know, and that's a unique situation as well. But you're not married.
Raena Burch: Yeah.
Jonathan Breeden: So, I mean, you're not entitled to, you know, that boyfriend has no legal duty to help keep you in the manner to which you became accustomed.
Raena Burch: Yeah.
Jonathan Breeden: Even though you may have been together 20 years because you were not married.
Raena Burch: Yep. There's no legal document saying he needs to, so.
Jonathan Breeden: Right. Right.
Raena Burch: Yeah. So. You already answered this one about there's no such thing, at least in North Carolina as for as common law marriage.
Jonathan Breeden: Correct.
Raena Burch: So what about like shared finances when they break up, like if they have a shared bank account or stuff like that?
, if they have a shared bank [:Raena Burch: So equally not equitably.
Jonathan Breeden: Right, right. That's exactly right. They should just be divided equally because you're both owners of the account.
Raena Burch: Got it.
Jonathan Breeden: And so it's, you can't say that. Well, $10,000 of the 15 in that checking account belongs to me because I make more money. We're both owners of the account.
Raena Burch: Mm-hmm.
Jonathan Breeden: Our money is co-mingled. It's been my experience that very few couples that live together actually could be with their money.
Some do, but that is the rare occurrence. What they normally do is they decide who's gonna pay what bill. So the man may pay the rent and the wife pays the power bill, and then the man may pay the cell phone bill and the wife may pay the cable bill.
Raena Burch: Got it.
Jonathan Breeden: You know,
Raena Burch: yeah.
ame thing with the trash and [:But again. It's gonna be what, how it's titled.
Raena Burch: Yeah.
Jonathan Breeden: And so, you know, I think that's important. You know, and this is where credit comes in, right. Some people's credit isn't good.
Raena Burch: Yeah.
Jonathan Breeden: So all the cars are in the boyfriend's name. And then you break up and the girl and, and those cars belong to the boyfriend. I don't care who's been driving them.
Raena Burch: Yeah.
Jonathan Breeden: And I don't care if the girlfriend's been making the payment, if the mor, if the loan on the car is in the boyfriend's name and the boyfriend. Has the title, you know, the title's gonna be his, I mean, that's his car.
Raena Burch: Yeah.
s, but one thing you can do, [:Raena Burch: Yeah.
Jonathan Breeden: One thing you can do is you can do a cohabitation agreement.
Raena Burch: Okay.
Jonathan Breeden: If you're going to live together for a long period of time, if you're gonna co-mingle funds, if you're gonna buy things or whatever.
Raena Burch: Mm-hmm.
Jonathan Breeden: You can do a cohabitation agreement. Which kind of acts like a prenuptial agreement.
Raena Burch: Okay.
Jonathan Breeden: If you were, you know, a prenuptial agreement agreement where you agree on how the property's gonna be divided, if and when you ever divorce, you enter those prior to the you getting married.
Raena Burch: Yep.
Jonathan Breeden: They state what will be marital, what will be separate after you get married, and what happens in the event of divorce.
Raena Burch: Yes.
Jonathan Breeden: A cohabitation agreement.
Raena Burch: And you only get a prenuptial agreement if you're gonna get married.
Jonathan Breeden: Right. Because a prenuptial agreement only takes effect if you get married because the consideration, IE the money, the thing that makes the contract binding is the marriage itself.
Raena Burch: Got it.
ating or you can do it after [:Raena Burch: Yes.
Jonathan Breeden: Which is basically a prenup after get married.
Raena Burch: After you get married,
Jonathan Breeden: a post-nuptial agreement. These cohabitation agreements are often more like post-nuptial agreements because we end up making them oftentimes after the people are already living together and they decided, okay, we're gonna go buy this house. We're gonna buy this piece of property, we're gonna buy this timeshare.
Raena Burch: Yeah. Big, big decisions.
Jonathan Breeden: Big bigger decisions,
Raena Burch: yeah.
Jonathan Breeden: That are longer term, and in those situations you can contract as to what is going to happen to these properties, to this timeshare, to this house, to this car if you buy it together.
Raena Burch: Mm-hmm.
Jonathan Breeden: If we end up separating down the road and that can give people peace of mind as well and provide protection to both parties.
Raena Burch: Yes.
Jonathan Breeden: If they choose to do that.
le who just don't have great [:Jonathan Breeden: Correct.
Raena Burch: That's one way to kind of protect yourself from
Jonathan Breeden: Correct.
Raena Burch: Still being able to use the good credit.
Jonathan Breeden: Correct. Correct. Right. Protecting well and the other,
Raena Burch: protecting everybody.
Jonathan Breeden: Right. And the other thing is we can do a quote unquote separation agreement after you separate and you were living together.
Raena Burch: Okay.
Jonathan Breeden: We do those just like we do cohabitation agreements as to what we're gonna do while you're living together. If you break up and you don't have an agreement, we can negotiate. It's not really a separation agreement, 'cause we're not the, you know, the consideration for a separation agreement is the marriage comes to an end.
Raena Burch: Yes.
t gonna move forward. But we [:How to get your property back if it's kind of a contentious separation. So, you know, we can help you negotiate one of those as well. Now we can't take the other party to court and sue them in domestic court.
Raena Burch: No.
Jonathan Breeden: But we can work stuff out. We can sort of threaten to go to magistrate court and start getting into, you know, a trial with the magistrate on whose property it really is. We can threaten to file a petition to partition the joint house and if it gets auctioned, whatever equity is probably gonna be gone because the person buying into the auction is gonna try to only pay. What's owed on the mortgage.
Raena Burch: Yeah.
Jonathan Breeden: Because they're gonna try to flip it.
Raena Burch: Yep.
u could do, but you can do a [:Raena Burch: Yes.
Jonathan Breeden: Raena. And so we can come up a contract is what's gonna happen. This property, these animals, oh, that's often commons.
Raena Burch: That's a big deal,
Jonathan Breeden: right? Dogs.
Raena Burch: Mm-hmm.
Jonathan Breeden: Who's gonna get the dog? Who's gonna get the cat?
Raena Burch: Yep.
Jonathan Breeden: Stuff like that. So you do have options, even if you don't have a collaboration agreement. Even if you don't do these things, even when you're separate, we can still try to work something out and get everybody on the same page.
Raena Burch: Okay.
Have family law questions? Need guidance to navigate legal challenges? The compassionate team at Breeden Law Office is here to help. Visit us at www. breedenfirm. com for practical advice, resources, or to book a consultation. Remember, when life gets messy, you don't have to face it alone.
Raena Burch: And you've said, you know, magistrate and Magistrate Court a couple of times in layman's terms. Is that Small claims court?
Jonathan Breeden: That's small claims court, correct? Correct.
Raena Burch: So just for people watching, most people know the term small claims,
Jonathan Breeden: correct? Correct.
aena Burch: I just wanted to [:Jonathan Breeden: Right. Right. Yeah. Small claims court is, is where and the claim ends up being failure to return property.
Raena Burch: Yeah.
Jonathan Breeden: Where you're saying, I own this property and this person will not return it.
Raena Burch: Yes.
Jonathan Breeden: And then you have to prove to the magistrate that you do own it and that they are unlawfully withholding it.
Raena Burch: Yes.
Jonathan Breeden: And in small claims court.
Raena Burch: Got it. Okay. And last question, and I know this is a big question and we might need to do a whole new episode on or whole nother episode on it, but if unmarried couples have children together. How does that affect custody and child support?
Jonathan Breeden: It has really no effect on custody and child support.
Raena Burch: Okay.
Jonathan Breeden: You know, I don't know what percentage of kids are born outside of wedlock.
Raena Burch: Mm-hmm.
Jonathan Breeden: But it's close to half.
Raena Burch: It's a lot.
Jonathan Breeden: Yeah. You know what I mean? It could be more than half, I'm not sure.
Raena Burch: Yeah.
Jonathan Breeden: But it's a substantial number.
Raena Burch: Yes.
o effect on custody or child [:Raena Burch: mm-hmm
Jonathan Breeden: till they're 18 years old or outta high school.
Raena Burch: Yep.
Jonathan Breeden: And, or a couple other things, maybe go longer, but as a general rule, that's for most people.
Raena Burch: Yes.
Jonathan Breeden: But if you're not on the birth certificate. That's a big deal.
Raena Burch: Okay.
Jonathan Breeden: And so,
Raena Burch: so how does that, how's that work?
Jonathan Breeden: So, so some unmarried people have children and the, well, the father is not on the birth certific.
Raena Burch: I was gonna say, can't be the mom.
Jonathan Breeden: No. Can't be the mother. No, father. Father not on the birth certificate, right. And so if you're in that situation and you're separating and you're not on the birth certificate, you know you're gonna need to file an action with the court to say. You know, you can file a paternity action or a legitimation action, both of which will allow you to establish legal rights to that child.
them. If the bomb won't just [:Raena Burch: Yep.
Jonathan Breeden: And then the court or the clerk, the legitimation in front of the clerk, paternity is in front of a judge. They kind of do the same thing. It's, they're a little different. We don't have time to get into the differences today, but they will recognize you as that child's legal father and grant you all the legal rights that comes with a father that would be on a birth certificate and in some of the situations, well, actually in an order that you get placed on the birth certificate, even if the mother disagrees.
Raena Burch: Okay.
Jonathan Breeden: If you're not on the birth certificate and you're not married, that's a problem.
Raena Burch: Yeah.
Jonathan Breeden: And your rights, they're not none, but they're extremely limited.
Raena Burch: Yeah.
Jonathan Breeden: If the mother is hell bent that you're not going to be involved. See the child that, you know, this, that, those types of things.
Raena Burch: Yeah.
Jonathan Breeden: But if the mother wants to get child support from you, then they're gonna have to establish paternity.
Raena Burch: Yes.
convey to you some parental [:Raena Burch: Yes, because child support court and custody court to court.
Jonathan Breeden: Two different things, right?
Raena Burch: Two different things.
Jonathan Breeden: Child support court, custody court, two different things. Just 'cause you're paying child support doesn't grant you any custody.
Raena Burch: Right.
Jonathan Breeden: And just goes, you have. Custody doesn't
Raena Burch: mean you have to pay child support,
Jonathan Breeden: it doesn't mean you have to pay child support. Right. So they are, they're completely separate and you don't have to have custody of a child to obtain child support. You could be anybody who has a child in North Carolina. In their custody that's living with them, whether they have custody or not. Neighbors, family, friends.
Raena Burch: Oh wow.
Jonathan Breeden: Friends of friends, parents. Anybody who has a child in North Carolina can go and ask for child support and say, this child is residing with me. I'm providing care, shelter and food for this child. I need child support. And the parents would have to pay that person child support.
Raena Burch: Oh, okay.
Jonathan Breeden: So those are other episodes.
Raena Burch: I did not know that.
nto in, unmarried situations [:Raena Burch: That was gonna be my next question.
Jonathan Breeden: The time to do it is at separation. Go ahead. If you're not on the birth certificate, maybe file your own paternity action to see if you can find out. You know what I mean? If, If child support is filed a paternity action against you because they want you to pay child support, you need to ask for a paternity test before the court orders you to pay child support, because in that order, they're gonna establish you as the father and they're gonna find you to be the father.
Raena Burch: Yep.
Jonathan Breeden: And you're gonna owe this child support. So if there's any questions as to whether you are the father or not. You need to ask for that paternity test as soon as child support enforcement contacts you, or as soon as you separate, if you have any questions about it moving forward because once you're found to be the father, by the court, it's going to be hard and you know, look granted people sign birth certificates and they're not the fathers too.
Raena Burch: I was gonna ask about that.
Jonathan Breeden: Right. And we'll probably at some point in the future do an episode on that. But you can get off that birth certificate if the child's not yours as well.
Raena Burch: Okay.
Jonathan Breeden: [:Raena Burch: it's a process
Jonathan Breeden: that's just in the last 10 or 12 years when I start practicing law. You a birth certificate, you were stuck. Now you can file a motion with the court and say, based on. Some sort of fraud. You're misled to believe that you were the father of the child, and you can ask the court to have paternity, DNA testing to determine whether you are the father. And if you're not the father, they will remove you from the birth certificate.
And that really is in the last 15 years.
Raena Burch: Oh, wow.
Jonathan Breeden: And so, and we've done those cases too. So, so, you know, there's, there's different ways to go about doing it, but yeah. But, But just. You know, I know I started by saying, you don't have any rights as a married couple. You don't have marital rights, but you still have all the regular legal rights as an adult.
Raena Burch: Yeah.
Jonathan Breeden: Who owns property? Who would be the parent of a child that you would have otherwise?
Raena Burch: Yeah.
n your own because you make, [:Raena Burch: Yeah.
Jonathan Breeden: But everything else. You know, custody, child support, that all is basically the same. The court doesn't really care whether you're married or not. I mean, you know, they're just gonna do what they think is best for the child.
Raena Burch: Gotcha. And the property, like you said, the property division is a little bit different, takes place in a different court, but you still have rights to your property.
Jonathan Breeden: Right. If you could prove that it is your property and that when things get co-mingled can be different. I would encourage anybody listening to this, if you are living in a long-term relationship. And you're not planning on getting married, you should get a cohabitation agreement.
Raena Burch: Yep. I agree.
ing is in the female's name. [:Raena Burch: Yeah.
Jonathan Breeden: And they are often don't have the power in the relationship.
Raena Burch: No.
Jonathan Breeden: And they come out of these things and they might have a car.
Raena Burch: Yeah.
Jonathan Breeden: Right. They might have a car and that's it.
Raena Burch: Yeah.
Jonathan Breeden: And and I do what I can, but, you know, you're limited.
Raena Burch: It's limited,
Jonathan Breeden: but right, but it's tough to look at a oftentimes a woman, I've seen it happen to a couple men, but oftentimes it's a woman in her early fifties and say, you have nothing.
Raena Burch: You helped build this life.
Jonathan Breeden: You helped build this life. You lived in that house.
Raena Burch: Now you have nothing.
Jonathan Breeden: You allowed him to help him pay that mortgage, and you added the fence and all that stuff, but your name's not on the house and you have nothing.
Raena Burch: That's, yeah, that's terrible.
Jonathan Breeden: And so that is. That's that, that's important. Perfect. Right, right. And so, you know, and if you've gotten, and if you're, and look, and if it's a second marriage and you're moving into his house that him and his wife has, make sure he add your name to the deed.
Raena Burch: [:Jonathan Breeden: And you know, I know we're talking about unmarried couples, but if you're a married couple and you're living in a house and your name's on the deed, you need to get your name added to the deed so that that is your house
Raena Burch: marital property now
Jonathan Breeden: that, right marital property, your house, your title to equity, that kind of stuff.
Raena Burch: Yeah.
Jonathan Breeden: And I know that's important.
Raena Burch: I know that like obviously. Working in family law and talking to people. Things like prenuptial agreements and what cohabitation agreements. There's a stigma. There's a stigma, right? Like, oh it's, it's bad luck.
Or, oh, you're thinking about getting divorced. We are not even married yet. Or you think about breaking up, we're still together. It's not bad. There's nothing bad about it because if, if you don't get divorced and you don't break up, then it doesn't matter. It's, It's completely irrelevant. But if you do, that's, it's there to protect everybody.
is a long-term cohabitation [:Raena Burch: Yeah.
Jonathan Breeden: All of these things that help build wealth.
Raena Burch: Yeah.
Jonathan Breeden: You know, because they're good investments and you can use 'em and all that stuff. If you're gonna be doing anything like that. As a non-married couple, you absolutely need a cohabitation agreement.
Raena Burch: I agree. I think they should definitely be more standard than they are.
Jonathan Breeden: Correct, correct. 100%. So anyway. Well, we'd like to thank Rayna Bur for coming on and asking that these questions about the legal rights of unmarried people when they separate. If you have any questions about what we you heard here today or your unique situation, feel free to reach out to us here at the Breeden Law Office at 9 1 9 6 6 1 4 9 7 0.
e you may be coming out of a [:We also would like to ask you to tag The Best of Johnston County Podcast in your Instagram story so we can raise our profile so more people will know about The Best of Johnston County Podcast. The Best of Johnston County Podcast comes out every single Monday, so be listening back next Monday for another great guest that will tell you what they love about Johnston County and what makes Johnston County such a special place to live.
Until next time, I'm your host, Jonathan Breeden.
tapestry of Johnston County.[:If the legal aspects highlighted raised some questions, help is just around the corner at www. breedenfirm. com.
