Gay Common Law Divorce, Washington-State Style

On December 14, a panel of the Court of Appeals of Washington, Division 3, determined several legal issues raised by the termination of the long-term relationship of Jeremy R. Long and Dr. David R. Fregeau.  In re the Meretricious Relationship of Long & Fregeau, 2010 Westlaw 5071860. One of the things the court did at the beginning of its decision was to, in effect, correct the title of the case.  Although the Washington state common law doctrine of "meretricious relationship" was adopted and applied to same-sex relationships in some important decisions a decade ago, the court pointed out that due to the "negative and derogatory connotations" attached to the term "meretricious," the state's Supreme Court has "chosen to substitute 'committed intimate relationship' for meretricious relationship."  And, actually, in this opinion the appeals court uses the term "equity relationship" instead.

In this case, the doctor, who was married to a woman and had a daughter, fell in love with a man.  He left his wife to move in with his lover, and subsequently initiated a legal separation from his wife.  The two men lived together for about eight years.  Both of them had sex outside the relationship, but apparently without any mutual understanding that it would be an "open" relationship, as the outside sex led to tensions, especially as the doctor was particularly unhappy that his boyfriend was having sex with others. Towards the end of the relationship, they went to couples counseling, but it didn't work, and the relationship terminated.   The doctor's divorce from his wife became final just as same-sex domestic partnerships became available under Washington state law, and the doctor even took the step of getting the necessary form to be completed, but his partner demurred, which is not surprising considering their relationship was pretty much on the rocks by then.

What made the dissolution difficult was that the men had bought real property together and had retirement accounts, but that for various reasons having to do with the ongoing divorce proceedings and the inability to get mortgages jointly while the doctor was still married, their first acquisition, held for investment, was put in the name of the boyfriend and the doctor's daughter (who rented the house from them for a while), and the second property, acquired as a residence for the two men, was purchased in the doctor's name.  When the relationship was finally over, the boyfriend sued "for an equitable property division," which required the court to determine whether the men had the kind of relationship that Washington courts have recognized as creating a right to such a division of property.

In this case, the question was complicated by the fact that the doctor remained married until near the end of the relationship, and as respondent in this case he insisted that their relationship was merely a "dating" relationship which was not sexually exclusive (at least de facto) and did not come within the parameters of the equity relationship doctrine.  Before trial, the parties went to mediation and settled most property issues, leaving the court to consider the issue of the two houses and the parties' retirement accounts.  The trial judge decided that the equity relationship doctrine applied and made an equitable division of assets, which essentially came down to requiring a payment to the boyfriend to buy out his interest in the houses.  The court of appeals affirmed as to most of this, departing from the trial court only in noting that since the doctor had made no contributions to his 401(k) retirement account during the relationship, its increase in value over the past eight years was not subject to the equitable division, requiring some recalculation by the trial court on remand.

The important part of the court of appeals' decision concerned the finding of an equity relationship, despite the doctor's arguments to the contrary.  The doctor focused on a comment in Vasquez v. Hawthorne, 994 P.2d 240 (2000), in which the court of appeals had suggested that the doctrine applied only to a couple who would not be precluded by law from marrying, and the doctor argued that because he remained married for almost the entire relationship, he could not simultaneously be in a legally recognized relationship with his boyfriend.  But the court noted that on appeal, 33 P.3d 735 (2001), the state's Supreme Court had disavowed this holding, writing, "Equitable claims are not dependent on the 'legality' of the relationship between the parties, nor are they limited by the gender or sexual orientation of the parties."  The court of appeals thus concluded that while the marital status of the doctor was a factor to be considered, it would not prelude finding an equitable relationship, which would depend on evaluating a list of relevant factors, including "continuous cohabitation, relationship duration, relationship purpose, pooling of resources and services for joint projects, and the parties' intent." 

Weighing the facts bearing on all these factors, the court found that the trial judge did not err in concluding that the equity relationship doctrine applied to this couple, and the court explained in some detail the facts in the record that supported this determination, making this opinion a useful reference for anybody working on a similar case in Washington State. 

The court also rejected the doctor's argument that his daughter should have been joined as a necessary party because the investment property the two men purchased was placed jointly in the name of his daughter and his boyfriend.  The court found that the daughter's ownership interest was not affected by the disposition of this case, and thus there was no need to join her as a party.

The opinion provides a fascinating example of state law being creatively used to deal with the reality of modern family relationships without getting hung up on legal status formalities.  Washington State is unusual in the flexibility with which its courts have accommodated non-traditional family relationships in this respect.  Some New York trial courts have adopted equitable partition procedures to deal with dissolving same-sex relationships where the main issue was division of real property ownership rights, but they haven't gone quite so far as Washington State in terms of devising a doctrine of equity relationship.  These developments are significant even where a state has legislated civil unions, domestic partnerships or same-sex marriage, since there may be many couples who will live together and even acquire property together without undertaking these legal status formalities, making the availability of such an equitable doctrine a useful way for the courts to deal with the break-up of such relationships.


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