Questions and Answers about “Divorce” for Long-Term Unmarried
Couples in Washington
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:
- whether there has been continuous cohabitation;
- the duration of the relationship;
- the purpose of the relationship;
- the pooling of resources and services for joint projects;
- 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 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 cohabitation 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 LGBT 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 LGBT community in their meretricious relationship cases.
Please contact us for a consultation appointment. Whether it be in the
beginning of your relationship or the end, and whether it be preparing
amicable cohabitatio 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.