Boise Divorce Attorney Discusses Co-Habitation and its Effect on Property Division, Child Custody and Child Support

As a Boise Divorce Attorney I have seen the law concerning co-habitation change over the years. It used to be that you could decide to live together and share your property and debt and thereby create a common law marriage. Idaho no longer recognizes common law marriage, except that if you formed a common law marriage before January 1, 1996 your marriage is grandfathered in and you are considered married.

I know many an Idaho Lawyer who has been approached by a client who asks, "So what happens if I began living together after January 1, 1996 and my ex and I had a child together and then we decide to split? Well, first of all the issues of child custody and child support pretty much remain the same, whether you were married or not. Child custody will be determined by the factors outlined in the Idaho Code and child support will be set by the Idaho Child Support Guidelines with mandatory withholding and Idaho employment law implications as discussed in a previous blog.

The real question is what happens to the property and the debt. If you were married the property and debt would follow community property laws, but if you were never married community property laws do no apply. The purchase and ownership of the property will be treated as a contractual relationship. Since you probably did not sign any agreement as to how the property would be split if you split, you have to look at the surrounding circumstances. Has one party paid more than the other, thereby giving them a greater interest in the property? Has one party always paid more or have they done so just recently? Was the property purchased as income property or was it purchased for private use? What kind of funds were used to purchase the property? Did the parties take out a loan? Who signed the loan documents? The issues as to whose property it will become would be the same as if two business partners purchased property together. And, of course, even if you split up, you can remain co-owners of the property and never divide it. However, the most likely thing that will occur if you both have paid and used the property is that one party will buy the other party out.

As far as the debt is concerned, you would look to who is obligated on the note. If both parties are, then both parties will remain until it is paid off or one party buys the other out.

Co-habitation sets up some interesting questions as to property and debt issues when there is no marriage to kick in community property laws. But remember, whenever you have a child, child custody and child support are not affected by the lack of marriage. As a Boise Divorce Attorney I see many people who wish they could use those community property laws because it makes the division of property much easier.

For more information concerning divorce, child custody, child support and Idaho employment law as it relates to child support in Idaho please visit www.lawboiseid.com