Marriage creates many legal rights between spouses. For example, during a divorce, each spouse has the right to seek financial support, called alimony, from the other. They also have the right to claim a share of the property that the couple acquired during the marriage.
An unmarried couple has none of these rights under Virginia law. These rights only arise during divorce, and only married couples can divorce. However, there may be other avenues to secure rights between unmarried partners. Here is what you need to know about palimony and how you can secure your rights in the state.
Rights When Unmarried Couples Break Up
Virginia treats all unmarried couples the same during a break-up. Specifically, you and your ex-partner have the same rights under Virginia law regardless of:
- How long you were together
- How entangled your finances were
- Whether you held yourselves out as spouses
In other words, in Virginia, either you are married, or you are not. As a general rule, the state does not recognize any middle ground where you get the rights of a married spouse without marrying.
Putative Spouses
The state’s laws have one exception to this rule. Suppose that you got married and believed you had a valid marriage. As it turns out, the officiant who performed your wedding ceremony was not an ordained minister or other person authorized to solemnize marriages. As long as both spouses believed in the validity of their marriage, Virginia recognizes it as valid.
These spouses, called putative spouses, have a defective marriage. But state law deems the marriage valid despite the defects because the spouses thought it was valid. As a result, the putative spouses will have all the rights of spouses in the event of a divorce. But if either spouse knew of the invalidity of the marriage, Virginia would deem it invalid.
Common Law Marriage
Another legal concept that comes up when dealing with unmarried couples is common law marriage. A common law marriage does not arise as a result of a wedding ceremony or marriage solemnization. On the contrary, it happens only in cases where the couple knows they have no legal marriage.
The requirements of a common law marriage vary from state to state. But in most states, a common law marriage requires the following elements:
- Intent of the parties to be part of a married couple
- Cohabitation as a couple
- Holding themselves out as married
States vary on the time required to form a common law marriage. But cohabitation for a long period would not create a common law marriage without the other elements.
Virginia law does not recognize common law marriages. Instead, the state only creates marriages that are licensed and solemnized.
The state does recognize common law marriages formed in other states, however. For example, South Carolina has common law marriage. A couple that met all of the requirements for a common law marriage while living in South Carolina would be recognized as married after moving to Virginia.
As a result, if that couple divorces, they would have all the rights of every other married couple.
The Concept of Palimony
Palimony is the popular term used for a support claim between unmarried partners. It typically happens when a couple breaks up after living together and owning property. The ex-partners will likely have different ideas for a fair distribution of the property they acquired while together. In many cases, both partners have an interest in getting a court involved in sorting out their rights.
Virginia law does not recognize palimony. This means that unmarried couples do not have a right to seek either property distribution or financial support simply by virtue of their prior relationship.
You can likely understand why the state takes this position. Since the state does not form common law marriages, it cannot say when couples should have the right to palimony actions. Without standards to determine when couples have a right to a palimony action, the courts risk turning every breakup into a court case.
Alternatives to Palimony in Virginia
Since Virginia does not give unmarried partners the right to pursue a palimony action, you must look for alternative legal doctrines to seek rights after a breakup.
Marriage
If you and your partner were married, you have rights in the marital estate. You also have the right to seek financial support after the marriage ends.
To marry in Virginia, you need to get a marriage license and have the marriage solemnized by a:
- Minister
- Judge
- Governor
- Lieutenant governor
- State assembly member
- Another person approved by a circuit court judge
Many people choose not to marry for personal, financial, or legal reasons. But in Virginia, if you choose not to marry, you cannot expect the rights of a married person when you break up with your partner.
Agreement
Partners can enter into contracts with each other just as any other people can enter into contracts. This contract, sometimes called a cohabitation agreement, defines the financial relationship between the parties.
The default rule in breakups of unmarried couples is that each party takes what they brought to the relationship. However, an agreement can change this default rule.
This agreement can come about in two ways. An express agreement is a written contract. The terms of the agreement would explain what property it covers and how it changes the default rule for that property.
The agreement can also address whether either partner receives support after a breakup. In some situations, partners might want to put into writing how one partner will continue to support the other after the relationship ends.
Additionally, the couple can form an implied agreement. This is a much more common situation. The partners might not take the time or effort to write down their financial arrangements. But the course of dealing between them might create an implied contract.
Thus, an unmarried couple might put both their names on the title to a car. A court might find that they owned the car together despite only one person paying for it. However, the risk of implied agreements is the uncertainty in how a judge will enforce it.
Joint Ownership
Unmarried partners can hold property together, such as:
- Real estate
- Vehicles
- Bank accounts
By having both parties on the property documentation, they share in the ownership. The main issue to watch for is the right of survivorship. Joint property with the right of survivorship passes to the other partner upon the partner’s death.
How To Get Rights Without Marriage in Virginia
Palimony does not exist in Virginia. But you can still have rights in property acquired by you and an unmarried partner. At The Law Office of Afsana Chowdhury, PLC, we know how to protect what matters most to you. Contact us for a consultation, you can call (703) 271-6519 to discuss your rights with a skilled Fairfax family law attorney today.
