Several of our women clients are in committed, unmarried relationships, and have had or plan to have kids with their partners. Having kids with a partner you’re not married to is simply different than being married to the partner (co-parent), and I want to make sure you fully protect yourself and your child.
Legal marriage brings with it a whole slew of rights and responsibilities that, if you’re not married, surprise surprise, you don’t have. The lack of these rights and responsibilities as an unmarried couple can create challenges when you’re doing anything jointly: buying a home, living together, …or having a child. (There are also, to be sure, a slew of rights and responsibilities that come with being a parent of a child, regardless of marital status.)
As I often say, managing risks is the first part of personal financial planning, so let’s talk about how to protect yourself if you have a child with your committed but unmarried partner.
Just as I did for a long-ago blog post about the importance of prenuptial/pre-marital agreements, I reached out to Andrea Vacca, a collaborative divorce lawyer in New York City, to get what I consider to be an expert’s view on this issue. Just as she told me then, she reminded me that she can only comment on law in New York State, as law is state-specific.
I went into the conversation with Andrea wondering what the challenges of being unmarried parents could really be. I mean, your status as parent isn’t affected by your marital status, right? Well, I was wrong on even that basic assumption, and there are several other, more-nuanced challenges too.
A few disclaimers before we proceed:
- This post is not a moral commentary. Like it or not, being legally married in this country automatically provides you with a giant legal infrastructure, and that infrastructure can affect your life for better or worse. It is on that basis that I write this blog post.
- I’m mostly addressing co-parents who are in an unmarried but committed relationship, as opposed to co-parents who aren’t in a relationship.
- Also, I’m talking about heterosexual couples. There might be a lot of overlap with same-sex couples, but it got too complicated too quickly.
- There are risks to being married, too! I’m simply not writing about them here.
Establish that Dad Is Actually the Dad.
Andrea noted one thing that genuinely surprised me: If you’re the dad, you need to make sure your name is on the birth certificate.
Either the mom can acknowledge your paternity at the time of birth (by getting your name on the birth certificate) or you will have to prove it later.
By contrast, in New York, a child born during a marriage is assumed to be the child of both parents.
Why is this important?
Because the biological mother is considered the mother from the get-go. In New York, she can just take the children. The father might not have any rights until or unless his paternity is acknowledged or proven. That’s bad for Dad.
Bad for Mom is that she has no right to child support until paternity is acknowledged or proven.
Evaluate All Financial Decisions as if You Are Single. Because Legally, You Are.
It can be surprisingly hard to separate from your partner when you’re not actually married, according to Andrea. This struck me as ironic. I bet most people (including myself) think that not getting married actually makes leaving your partner easier. There’s no marriage to legally dissolve.
There’s merit to that perspective, but here’s what Andrea is talking about:
You’ve been living as a family unit, pooling financial resources. If you split, there’s no legal obligation to split the financial resources. How will each of you support your children individually?
Andrea gave an example. Let’s say you and your partner buy a joint family home. Except it’s in your partner’s name legally (it’s “titled” to your partner, not to you; their name is on the deed). You gave them money to help buy it initially or to cover ongoing ownership expenses (maintenance, property tax, mortgage, etc.). You probably won’t have any rights to that property, so if you split as a family, now your partner has the family home to live in with the kids…and you don’t.
Maybe you will end up feeling pressure to stay in the relationship because your individual finances couldn’t support a separate household.
By contrast, in New York, in a marriage, both members would have rights to that property.
Andrea actually used the word “hypervigilant” when talking about how unmarried partners need to approach their lives together, especially their finances.
For every major financial decision, ask yourself, “If we weren’t together, how would I do this?” You need to evaluate every financial decision as if you are single, because legally you are.
For example, Andrea mentioned that each parent might establish their own 529 account (college savings) for the child. In New York state, you get tax benefits for contributions to a 529. But you can’t get tax benefits for contributions made to the 529 your unmarried partner owns. You need to have your own.
You Don’t Have to Get Married. You Do Need These Legal Agreements.
Andrea is not pro- or anti-marriage when having kids. She is pro having a “no nup” (no-nuptial), aka, a cohabitation agreement. She’s a fan of no-nups whether or not you have kids, in fact.
What does a cohabitation agreement specify? Generally, how assets and income will be used while cohabitating and how they’d be split after the relationship ends (if it turns out that way).
The agreement should document what you and your partner agree to in terms of:
- How will each of you support the household and the family?
- How will each of you contribute to the relationship?
- In the event the relationship ends:
- How will the kids be supported?
- What will be—and won’t be—shared?
- How will you spend time with the children?
You should also agree upfront on how you will make decisions together.
(Now, this sort of conversation would benefit any couple who share children, married or unmarried. As Andrea laments, “No one does this, but they should.”)
Some people are savvy enough to manage the risks of not being married by doing good estate planning (“I will leave all my money to you!”) and buying the proper insurance policies (“If I die, you get $2M!”).
While your romantic relationship is good, this probably works. But it’s the ending of the relationship that I’m worried about. There is nothing legally preventing the other person from changing who gets the money in their will (or trust) or life insurance policy. Not unless you have a legal agreement dictating who gets what, that is.
Andrea notes that the law is usually much more clear around the “children” part and less clear about the “money” part. So, this cohabitation agreement needs to create that clarity.
Raising a Kid Together While Not in a Committed Relationship
Not every couple who has a kid is in a relationship. Either there was a relationship that ended or you never were in a relationship and ended up having a child together anyways.
If you have a child together and you don’t live together, you want these two legal agreements ASAP, according to Andrea:
- Child support agreement
- Parenting agreement
If you are currently living with your co-parent but you break up in the future, you should pursue these legal agreements at that point. Andrea recommends you work with a mediator or attorney, do it collaboratively, and avoid the courts if you can manage. (After you draft the agreements, you will need to go to court to make the agreements enforceable. Just leaving an agreement in a drawer doesn’t accomplish anything.)
Ideally, as I wrote above, you would include in your agreement upfront rules about how you make decisions together.
Taking a Step Back from Your Career to Raise the Kids.
If you’re a two-working-parent family, you know how hard that life is.
Accordingly, many couples choose to have one member stay mostly or entirely at home. (My husband and I have done that, for example.) While that has many lovely benefits, that SAH parent definitely takes on some career and financial risk, even if married.
In most cases, the woman is the parent who chooses to stay at home, and the step back from her career can be smack in the middle of some of the most profitable and/or quickly advancing stages of her career.
If you take a step back from your career, you risk creating a permanent, negative effect on your wealth and ability to earn money. (I am not saying you should necessarily prioritize money over this family decision.)
If you step back from your career for a while, and your relationship continues to work well, great! Yes, individually and as a household you’ve earned and might continue to earn less money, but that financial impact is shared by both you and your partner.
But what if your relationship ends? That’s the risk I want to make sure you think about and try to manage.
If you’re married and the relationship ends, then at least you have some legal protection by way of the marriage that has now ended (alimony and such).
If you’re not married and the relationship ends, you don’t have any legal protections by default. It’s possible you have suffered a permanent reduction in your individual wealth and ability to earn money and your ex-partner is under no legal obligation to help you.
Therefore, you need to legally document some protections for yourself early on. For example, this document could include things like:
- Your partner will put $x into your investment account every year.
- Your partner will buy a new home for you if you split.
Even If You’re Married
Andrea points out that even if you’re married, if one of you chooses to stay at home and take a step back from their career, a post-nuptial agreement is a great solution for providing protection. (Full disclosure, my husband and I haven’t done this and don’t plan to.)
Marriage provides some protection, but it depends on the state and the circumstances.
An Alternative Idea: Get Married And “Carve Out” the Bits of Marriage You Don’t Like.
As some of our clients have found, staying unmarried but living a life that is marriage-like (buying a home together, living together, having a child together) can be a lot of work. You should create explicit legal documentation for each of these acts. The laws of marriage aren’t there to provide any protection, so you need to explicitly create legal protection for yourself.
I also understand that people have strongly held beliefs about (not) getting married. There are definitely stories about and aspects of legal marriage that are challenging.
Andrea proposes that you ask yourself “Why don’t I want to be married? We’re living together. We’re having a child together.”
Maybe that makes marriage sound more desirable. Or maybe it helps you identify the specific aspects of marriage that you don’t like. Which can help you with this next part:
Instead of staying unmarried and legally documenting all the ways you still want marriage-like protections, how about doing the exact opposite: Get married and legally document all the ways you don’t want to be bound by the default rules of marriage? You could accomplish this with a prenuptial agreement, for example. Would that be easier, legally, financially, socially, and emotionally?
Andrea explained that, by not having the protections of marriage, you are actually putting your children at risk because they won’t have the financial security that would flow to you if you were to divorce.
I know that getting married, or not, is an intensely personal decision that I wouldn’t presume to dictate. I have one and only one concern here: What risks are you creating for yourself by having a child with someone you’re not married to? And how can you protect yourself against those risks?
Now go kiss that baby.
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