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September 2007Domestic Partnership and the Lawby Jason Holloway As the definition of family grows to accommodate our diverse population, laws concerning the establishment, maintenance, and termination of families are developing to accommodate the changing landscape. Washington’s new domestic-partnership registry was signed into law on April 21, 2007. The registry itself, and the marital-like protections it provides to Washington families, have generated much attention and debate in the legal community. While the new legislation is a welcome step toward recognizing the changing face of families in Washington, it does little to alter the landscape of family law in the state. It is fairly narrow in scope and in application, as it does not apply to most unmarried heterosexual couples, grants few rights that are not otherwise available through private contract, and does not address many contentious issues that unmarried couples face, such as child custody and property division. If anything, by creating a process by which unmarried couples are able to officially register their relationship but by failing to address many real-life issues that may affect registered couples during and at the end of the partnership, the registry may result in an increase in litigation to dissolve domestic-partnership issues. Registered partners may come to expect a formal “dissolution” when the relationship ends, and, absent pre-planning, may have to litigate parenting and financial issues which are not addressed by the registry. The domestic-partnership registry amends 22 existing state statutes,1 adds new sections to three statutes,2 and adds a new chapter to Title 26. These changes will provide same-sex couples, and couples where one party is at least 62 years old, with many rights previously applicable only to married couples. These rights include the ability to visit an ill or injured partner in the hospital, to provide informed consent for certain medical procedures for an incapacitated partner, to control the disposition of a deceased partner’s remains, to authorize an autopsy on a deceased partner, to make anatomical gifts of a partner’s organs, to inherit from a partner in the absence of a will, and to administer a partner’s estate in the absence of a will. Most of these newly acquired rights are already available to unmarried couples via private agreements or other instruments. In fact, many of these agreements and instruments, such as powers of attorney, healthcare directives, wills, etc., may provide couples with more comprehensive and flexible rights than those provided by the domestic-partnership registry. Specifically, other states will give full faith and credit to such agreements and instruments, where they will likely not do the same for rights afforded via statutory domestic partnerships. The one new, and certainly key, right conferred to unmarried couples via domestic-partnership registration is the right to bring a civil lawsuit for the wrongful death of a partner. This right is not otherwise available to unmarried couples via private contract or other means. Other rights unavailable outside of marriage, such as payment of spousal maintenance or awards of attorneys’ fees at the conclusion of a relationship, are neither granted nor addressed by the registry. Similarly, the registry does not touch on issues of taxation or entitlement benefits (such as Social Security or pension transfers). Keenly lacking from the domestic-partnership legislation, at least from a family law perspective, is a statutory framework for dealing with issues surrounding child custody and asset/liability division when the partnership ends. Therefore, in partnerships with children, absent adoption or private agreements regarding co-parenting of children, at the end of a relationship, unmarried non-biological parents will have to negotiate the often confusing realms of de facto parentage and third-party custody actions. Additionally, without previously executed agreements regarding the division of property, the division of assets and liabilities would be subject to disposition under meretricious-relationship law. Meretricious Relationship A meretricious relationship is characterized as a “stable, marital-like relationship where two parties cohabit with knowledge that a lawful marriage between them does not exist.”3 Meretricious relationships can be formed by heterosexual and same-sex couples.4 In order for the laws of meretricious relationships to apply, legal action must be initiated and a determination must be made by the court that such a relationship exists. There are five key factors for establishing whether a relationship will be considered meretricious: 5 (1) Continuous cohabitation. Continuous cohabitation is the length of time a couple resides together continuously in a shared residence during the relationship. Such cohabitation would be interrupted by periods of separation, separate residences, etc. (2) Duration of the relationship. The period of time in which the parties are in an exclusive relationship. (This factor is often more easily satisfied than others, but does not alone support a claim by either party for an equitable division of assets upon dissolution of the relationship.) The fact that one of the parties is married to or separated from another individual during the period of time the parties exclusively dated may not limit the duration of the relationship, but may belie the intent of the parties to form a meretricious relationship during that period of time. (3) Purpose of the relationship. Did the parties cohabitate in a marital-like relationship as opposed to living together for non-romantic purposes, such as living as roommates? This factor may be satisfied by evidence supporting the prior two factors, as well as testimony of the parties supporting their intent to form a “stable, marital-like relationship.” State registry of the partnership will provide evidence of the purpose of the relationship. (4) Intent of the parties. The intent of the parties would be demonstrated by evidence that the parties knew they were not married, but functioned as one would expect a married couple to function and held themselves out as “spouses” or a marital-like couple. The fact that one of the parties is married to another during the relationship may indicate intent not to form a meretricious relationship. Registering a domestic partnership with the state will evidence intent to form a marital-like relationship, thus satisfying this factor. (5) Pooling of resources. This factor is met by a showing of significant pooling of resources and services for joint benefit. This can be demonstrated by the constant or continuous payments of joint expenses, substantial investments of time and effort into specific assets, and the joint ownership of property. Simply sharing a joint bank account may not support this factor. The touchstone is whether the parties made such investments of time, resources, or funds to justify an equitable division of assets. The factors are neither exclusive nor hyper-technical, and no one factor is weighed more heavily than another. The factors and evidence are taken and evaluated as a whole to justify either party’s claim for an equitable division of property acquired during the relationship.6 The court has established a three-pronged analysis for disposition of property when a meretricious relationship ends.7 First, the court must establish that a meretricious relationship existed; if such a finding is made, the court then moves to the second prong. Under the second prong, the court must evaluate the interest each party has in the property acquired during the relationship, such as joint purchases and incurred debt. Under the third prong, the court makes a just and equitable distribution of such property. In dividing the property, the court utilizes family-law community-property laws for guidance. Although these laws do not directly apply to meretricious relationships, the court can refer to community-property laws to make a just and equitable division of any “community-like” property that the parties acquired during their relationship.8 The court is not empowered to divide any separate property of the parties when a meretricious relationship ends.9 Case law has provided no basis for awarding “spousal” maintenance to unmarried parties in meretricious relationships. Attorneys’ fees are similarly unavailable for court allocation between the parties. Unmarried cohabitating couples should always execute a living-together or cohabitation agreement that defines their rights and responsibilities with regard to assets and debts acquired during the relationship. Absent such agreements, if the relationship ends, the parties may be surprised to find that their rights to assets and responsibilities for debts are not as clear as they believed. To resolve any disputes, they may have to resort to the sometimes uncertain laws of meretricious relationships. How a court will divide assets and liabilities at the close of a meretricious relationship is not always clear, and more importantly, may not accurately reflect either partner’s unilateral expectation with respect to his or her own rights or obligations. Private Agreements Private agreements allow the parties to avoid the laws of meretricious relationship altogether. By executing living-together, cohabitation, and property-ownership agreements, unmarried couples can creatively address and resolve potential issues before such issues become litigious problems. In addition to the most basic matters that should be addressed in such agreements, such as “who gets asset A” and “who pays debt B,” the parties can also address the payment of maintenance and the tax implications inherent in some transfers, and can balance inequities that may exist with respect to separate property and/or assets that are not eligible for transfer between unmarried parties. For instance, if a partner intends to acquire an interest in the other’s IRA benefits, the transfer will be treated as a taxable distribution to the named owner of the account. Also, real estate transfers made when the relationship ends are not exempted from excise tax (such transfers are exempt in marital dissolutions), and gift transfers made between unmarried partners would likely be taxable events (Internal Revenue Code 2516 provides exemptions only for married parties). Social Security benefits are not available to an unmarried partner of a benefit recipient. Similarly, unmarried couples are unable to use qualified domestic relations orders to divide retirement benefits of qualified plans. Many of these issues can be addressed and resolved by the parties at the forefront of their relationship via private agreements. By using these tools, the parties may allocate assets to compensate for unavailable transfers or tax consequences. In the absence of such agreements, creative arguments may be made in court to address tax consequences and to attempt an equitable division of assets. However, because the court cannot invade a partner’s separate property interests, such arguments may be challenging. Private agreements are always suggested to provide the parties with the maximum control over this process. Such agreements are akin to prenuptial agreements and should follow the same general formative guidelines of prenuptial contracts. Each party should be represented by independent counsel; the agreement should be entered into freely and without duress; and all assets, liabilities, income information, and other relevant facts and circumstances should be disclosed in the agreement. In the absence of an omnibus relationship agreement, unmarried partners who obtain significant assets or debts during the relationship, either jointly or unilaterally, should always enter into an agreement that spells out the parties’ ownership interests of each asset or obligation, and that addresses the disposition of the asset or debt should the relationship end. This benefit of private agreements for unmarried couples cannot be overstated. These private contracts would be enforced and interpreted under contract law across state lines. Unmarried Couples with Children Unmarried couples raising children together will want to take steps to ensure that the rights and responsibilities of the non-biological parent in the relationship are clearly defined up front. For unmarried parents who are the legal or biological parents of a child, the Parentage Act will apply10 and can establish the legal parentage of a child, set child support, and provide for a parenting plan/residential schedule. However, if one of the partners is not the legal or biological parent of the child, that parent may be in a very unfortunate position at the end of the relationship; absent court action, he may find that he has no legal right to care for or even see the child he has been raising. The most comprehensive means of solidifying a non-biological parent’s parental rights is through second-parent adoption. Because parties are unable to contract with respect to parental rights, in the absence of adoption, a non-biological parent of a child may have to rely on the doctrine of de facto parentage11 or on third-party custody law. Second-Parent Adoption Second-parent adoption allows a non-biological parent to adopt his or her partner’s biological or adopted child without terminating the latter’s parental status.12 This option is not available if another individual or the other biological parent has custody of the child, unless that person is willing to waive his or her parental rights. Second-parent adoptions should be distinguished from joint adoptions, which allow both same-sex parents to adopt a child with no pre-existing biological or adoptive relationship to either party. Second-parent adoptions provide children being raised in unmarried families with financial and legal protections that may not otherwise be afforded to them. The child is able to receive healthcare insurance coverage from a second parent’s employer, may receive workers’ compensation benefits arising from a second parent’s work-related injury, and can receive Social Security disability benefits. If the parents separate, residential time between the child and second parent may be ordered, and the child may be entitled to child support from the second parent. Second-parent adoptions also protect the child and the family if the child’s biological parent dies or becomes incapacitated. Absent adoption, the child may be removed from the non-biological parent’s care and placed with relatives or in foster care. This may be true even if the non-biological parent is designated as the child’s guardian, as such designations can be challenged in court. Moreover, second-parent adoptions are critical should the child become seriously ill. A second parent is entitled to parental leave under the Family and Medical Leave Act, can consent to emergency medical treatment for the child, and is entitled to visit the child in a hospital or medical facility. De Facto Parentage and Third-Party Custody In the absence of adoption, a non-biological parent raising a child with his or her partner has other, less favorable options with respect to parenting if the relationship ends. A parent may petition the court under the court-created de facto parent doctrine established in In re the Parentage of L.B.13 or may attempt to gain custodial rights through a petition for third-party custody. To qualify as a de facto parent, a non-biological/non-adoptive partner must first show that he or she had a parent-like relationship with the child and that his or her “parent-like” rights have been impinged. Following this threshold showing, the non-biological parent bears the burden of proving that: (1) the natural or legal parent consented to and fostered a parent-like relationship between the child and the non-biological parent; (2) the non-biological parent and the child lived together in the same household; (3) the non-biological parent assumed obligations of parenthood without expectation of financial compensation; and (4) the non-biological parent has been in a parental role for a length of time sufficient to have established a bonded, dependent, parent-like relationship with the child. The court has held that “recognition of a de facto parent is limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.”14 “…[A] de facto parent stands in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise.”15 As such, recognition of a person as a child’s de facto parent necessarily “authorizes [a] court to consider an award of parental rights and responsibilities . . . based on its determination of the best interest of the child.”16 A de facto parent is not entitled to any parental privileges as a matter of right, but only as determined to be in the best interests of the child at the center of any such dispute. This area of law surrounding de facto parentage is still developing and, although the language utilized by the court is strong, there is no guarantee that a non-biological parent will succeed in establishing parental rights. Even if a non-biological parent is successful, it will only be after a belabored and expensive court action. Moreover, de facto parentage may be very difficult to apply to very young children for whom long-term contact between partner and child cannot have been established, and may be impossible to establish for unborn children despite a partner’s involvement with conception or prenatal issues. Private Instruments and Directives Private instruments, much like the private agreements discussed above, are “must haves” for unmarried couples. With private instruments, couples can address, up front, the rights each partner has with respect to financial, healthcare, and other decision-making issues should one partner die or become incapacitated. Financial durable powers of attorney17 may be used to allow an unmarried partner to make gifts; transfer property to trust; affect wills, beneficiary designations, and agreements; acquire and dispose of property; file and pay taxes; deposit funds into and withdraw funds from bank accounts; defend or bring lawsuits; and hire and fire counsel and employees. An executed healthcare power of attorney18 may be used to allow an unmarried partner to make all healthcare decisions for his or her partner; to provide consent to procedures and choice of providers; and to consent to admission to facilities. It can also provide the partner with access to the other’s medical records. Powers of attorney may also be used to grant a partner the authorization to make healthcare decisions for minor children, to nominate a guardian of the person or estate of a minor, to provide informed consent for healthcare, and to make anatomical gifts. Washington’s domestic-partnership registry will amend RCW 11.04.015 to allow for intestate succession by domestic partners. However, domestic partners, and unmarried couples who do not qualify for the registry, should execute a will in order to control the disposition of their assets and liabilities at death and to avoid the statutory rules of succession. Washington law has continued to adapt to the changing faces of “family.” The recent domestic-partnership registry is the latest state effort to address inequities facing unmarried families. However, the registry is significantly limited in scope and application, and most unmarried couples, even those who register their partnership, will still need to take proactive steps to address and protect their rights and obligations. Domestic partners raising children will want to utilize adoption law and be conscious of the developing law of de facto parentage and third-party custody. Partners acquiring assets or debts will want to execute private agreements to deal with ownership and disposition issues. By failing to address these and other issues privately and in advance, unmarried couples may find themselves at the mercy of the court system to obtain remedies that may not adequately address the desires or needs of the parties or their children. Jason Holloway is an attorney with family law firm McKinley Irvin. He can be reached at jason@mckinleyirvin.com or at 206-625-9600. NOTES
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