by Justin Sedell, Associate, McKinley Irvin, PLLC

Ending a long-term relationship is a difficult process whether the partners are married or not. Whether you are entering into a new relationship or your relationship has come to an end, your attorney can help protect your financial future. While these questions and answers provide a basic overview, it is critically important that you consult an attorney experienced in this unique area of the law to determine how these laws apply to your specific situation.

Question: Does the law really have protections for unmarried couples even though we can't get divorced?

Answer: Yes. In order to protect unmarried couples when their relationships end, the law has developed to provide special protections that permit certain aspects of community property law to be applied when unmarried couples end their relationships. These protections are embodied within the "meretricious relationship" doctrine as first defined by the Washington Supreme Court in the case of In Re Marriage of Lindsey.

Question: Does the "meretricious relationship" doctrine apply to same-sex couples?

Answer: Yes. The Washington Supreme Court held in Vasquez v. Hawthorne that the meretricious relationship doctrine may be applied regardless of the legal validity of the relationship between the parties. Therefore, the gender and sexual orientation of each partner is irrelevant when determining whether a meretricious relationship exists.

Question: How do I ask the court to divide our property if I can't file for divorce?

Answer: Your attorney will prepare and file a "complaint" that asks the court to establish that a meretricious relationship existed between you and your partner and to divide any property that the two of you acquired during your relationship.

Question: How does the court determine whether a meretricious relationship existed?

Answer: Not every relationship is a meretricious relationship. A meretricious relationship is defined as "a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist." In order to determine if a relationship was "marital-like," the Washington Supreme Court held in the case of In re the Marriage of Pennington that the court will examine five distinct factors: (1) whether there has been continuous cohabitation; (2) the duration of the relationship; (3) the purpose of the relationship; (4) the pooling of resources and services for joint projects; and (5) the intent of the parties.

By way of example, the court would likely find that a meretricious relationship exists where the parties decided to reside together for many years in a monogamous relationship, where they shared their incomes and expenses, and where they acquired property together during their relationship. It would not likely find that a meretricious relationship exists where the parties were dating other people, living separately, and not sharing their financial affairs.

Question: If Washington establishes state registered domestic partnerships, how will this impact meretricious relationship law?

Answer: The Washington State Senate recently passed a bill establishing state registered domestic partnerships for both same-sex partners and heterosexual partners where one of the parties is over 62 years old. The Washington State House of Representatives is also expected to pass the bill, and Governor Gregoire has indicated her intention to sign it into law. The establishment of domestic partnerships in Washington will not change meretricious relationship law. Whether or not eligible parties decide to enter into a state registered domestic partnership, meretricious relationship law will still apply if the relationship terminates. However, the court may consider the establishment of a state registered domestic partnership as evidence that the parties intended to form a meretricious relationship.

Question: If the court determines that I had a meretricious relationship with my partner, what happens then?

Answer: If the court determines that a meretricious relationship existed, it will evaluate the interest each party has in the property acquired during the relationship and then make a just and equitable distribution of that property. In dividing the property, the court will turn to community property laws for guidance. Although community property laws do not directly apply to meretricious relationships, the court is permitted to refer to community property laws to help it make the just and equitable division of any "community-like" property that the parties acquired during their relationship.

Question: I've heard a lot about community property but I'm not really sure how it works and how it applies to my relationship with my partner.

Answer: Washington is a community property state. The basic precepts of community property law are simple: All property and debt acquired during a marriage in Washington is presumed to be community property and debt and will be equitably divided between the parties by the court if the marriage ends. Additionally, each party's separate property is before the court for allocation to ensure that both parties receive a fair settlement after a divorce. As discussed above, community property laws do not directly apply in same-sex relationships, but the court is permitted to use them for guidance in determining how to divide "community-like" property when a meretricious relationship ends. Unlike in a dissolution of marriage case, however, the court cannot divide any separate property of the parties when a meretricious relationship ends; it is only permitted to divide "community-like" property and debt. Your attorney can help you characterize your property as separate or "community-like."

Question: Can the court require that one partner pay spousal maintenance ("alimony") payments to the other partner when a meretricious relationship ends?

Answer: There is no legal authority for a court to order one partner to pay maintenance to the other after a meretricious relationship dissolves.

Question: My partner and I already decided how we want our property to be divided if our relationship ends. What can we do to make sure our wishes are respected?

Answer: An attorney who is specifically knowledgeable about meretricious relationship cases and other laws that impact unmarried couples will be able to help you prepare written agreements that will bind both partners and protect your wishes should your relationship end. These domestic partnership agreements, similar to a prenuptial or postnuptial agreement, will allow you and your partner to make your own decisions about how your property should be divided rather than relying on a judge to make these divisions for you.

Question: What if my partner and I have children together?

Answer: If you have been raising children with your partner, it is critical that you consult with an attorney knowledgeable about family law and how it applies to families where the partners are unmarried. For heterosexual couples, the Parentage Act applies. An action brought under the Parentage Act can establish the legal parentage of a child, set child support, and provide for a parenting plan.
While the law has recently developed to provide special protections for same-sex partners and their children, this is a new and developing area of the law. If you and your partner are of the same gender, it is imperative that you have an experienced family law attorney sensitive to GLBT parenting issues to help you establish the non-biological parent's parental rights. Once these rights are established, your attorney can help you develop a parenting plan that will determine the residential schedule of the children and how much monthly child support will need to be paid by the other partner.

Question: Are all attorneys equally able to help me with my meretricious relationship case?

Answer: Before choosing your attorney, you should first make certain that the attorney has the knowledge, sensitivity, and resources to successfully represent you in your meretricious relationship case. Review the McKinley Irvin article entitled "The Top 10 Ways to Choose a Family Law Attorney Who is Right for You." Regardless of your sexual orientation, gay or heterosexual, you deserve attorneys who understand your specific concerns, and have experience advising parties in meretricious relationships and helping them resolve their disputes.

The law surrounding same-sex partnerships is a rapidly developing area of the law. You deserve an attorney who understands these developments and how they will apply to you and your partner.

If you are a member of the gay and lesbian community, McKinley Irvin has the knowledge necessary and the sensitivity required for your legal concerns. As the largest family law firm in the Pacific Northwest located in the city with the second highest number of same-sex couples in the nation, McKinley Irvin attorneys have years of experience representing members of the GLBT community in their meretricious relationship cases.

McKinley Irvin also has years of experience preparing domestic partnership agreements for both heterosexual and same-sex couples to help you and your partner protect your assets from the very beginning of your relationship.

Please contact us for a consultaation appointment. Whether it be in the beginning of your relationship or the end, and whether it be preparing amicable domestic partnership agreements or representing you in complex litigation, McKinley Irvin stands ready and willing to help you protect your property rights, establish your parental rights, and secure your financial future.