When Unmarried Couples Separate – What’s Best for the Children?

Separating married couples, with or without children, know that divorce requires the legal dissolution of the marriage.  Divorce is not an action dictated by a couple’s decision to separate or by the parties entering into a written agreement.  Divorce requires the court approval of the parties’ agreement, an agreement that incorporates terms for the division of assets and liabilities and the support of children and/or a spouse, just to highlight the key areas.  Is the same true for unmarried couples that wish to end their relationship?

Unmarried couples do not need the court’s approval to separate their assets and liabilities.  Children, however, raise distinctly different questions.  Assuming that there is no question of paternity and both parties acknowledge that they are the biological parents, agreements need to be reached with respect to the support and custody of the children.  Where the children live and with whom are important decisions.  With respect to child support, unwed parents are not absolved from the responsibility for child support.  Married or unmarried parents are required to pay child support whether or not the child lives with them or not. 

Legal premises aside, unmarried parents should address the very key issues of support and custody from the birth of a child.  However, if the parents have been living as a couple, these questions may not surface as long as the parties are living together as a family.  They, like married couples, structure their own arrangements for the care and support of family members.  When, however, they separate, since they were never married, they do not need legal approval to dissolve their relationship.  Child-related questions should, however, not be left unstructured.  It is important to reach agreement on custodial arrangements for the children and the provision of support.  And, too, it is important to submit these agreements for “Support and Custody,” to the court for approval.

At the Centre for Mediation and Dispute Resolution, we believe that parents who are able to work together to structure custodial arrangements and provide ongoing support for their children are demonstrating that they, as parents, are committed to the well-being of their children. These couples recognize that they should, and can, focus on the best interests of their children, now and in the future.

Mediation provides a confidential and judgment-free forum for designing a support and custody agreement in which the needs of the children are center stage.  It is this agreement that will be submitted by the parties to the court for approval.  If circumstances change in the future, agreements can be modified by court action.

At CMDR we suggest that all parents, married or unmarried, incorporate in their agreements provisions for future adjustment. If these terms are approved by the court, as part of the parties’ Support And Custody Agreement, the parties can in most instances initiate adjustments without returning to court for approval. Consider the following adjustments as examples:

• Periodic recalculation of support to reflect income changes

• Periodic reviews of extracurricular and extraordinary child-related expenses

• Periodic parental discussions to review custodial schedules

• Periodic parental discussions to discuss child-related issues

• Review of health insurance options to meet child-related needs

• Assessment of the children’s educational program and consideration of present and future educational costs

Designing a custodial agreement that embraces the child’s right to have two loving and involved parents recognizes that the parents are committed to their children’s present and future well-being.  Clarity on parenting plan terms allows each parent to plan for time with and without the children, as well as to avoid placing the children in the middle of adult disagreements and/or confusion as to days and times.

Calculation of child support exchanges and periodic consideration of additional child-related expenditures will help to maintain the children’s standard of living and provide clarity as to moneys that parents will have available for their own budgetary needs after receiving and paying support obligations.

The word “ clarity” is important.  Parents who design their own agreements, who are committed to working through disagreements and resolving conflicts, are much more likely to honor the terms of agreements that they had a role in creating. Mediation provides the forum for communicating needs, concerns, and priorities. The end product should be an agreement that is acceptable to the court and to the participants, an agreement that is equitable and workable.

Lynne Halem

Dr. Lynne C. Halem is the director at the Centre for Mediation & Dispute Resolution in Wellesley, MA. Dr. Halem has worked in the mediation field since 1982. She is on the Family Dispute Service Panel of the American Arbitration Association and a past board member of the Divorce Center,… MORE