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Billy
Crystal’s character in “When Harry Met Sally” was a lawyer, but he wasn’t as famous
for dishing out sage legal advice as he was as the author of The Original Harry
Burns Rule (Unamended): “No man can be friends with a woman he finds
attractive. The sex part always gets in the way.”
But
there is a scene when Harry and Sally’s friends Jess and Marie are moving in
together and the just-divorced Harry offers up some pretty insightful counsel:
“Right
now, everything is great, everyone is happy, everyone is in love, and that’s
wonderful. But you gotta know that sooner or later, you’re going to be
screaming at each other about who’s going to get this dish – this $8 dish will
cost you a thousand dollars in phone calls to the legal firm of That’s Mine,
This Is Yours.
“Jess,
Marie, do me a favor, for your own good. Put your name in your books right now,
before they get mixed up and you don’t know whose is whose. Because someday,
believe it or not, you’ll go 15 rounds over who’s going to get this coffee
table – this stupid, wagon-wheel, Roy Rogers, garage-sale coffee table.”
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OK
– so Marie made it QUITE clear that possession of the wagon-wheel coffee table
was not going to be an issue if she and Jess ever broke up. The point is, Harry’s
legal advice to his cohabitating cohorts was pretty sound and would apply in a
lot of jurisdictions, including Washington.
Washington
law does not recognize so-called “common law" marriages. But Washington
courts have established a doctrine that applies community property rules to
couples in stable, long-term relationships. And application of those rules
could come as a rude surprise at an inopportune moment – like when one of the
cohabitating partners dies.
A
basic presumption of Washington community property law is that property
acquired during marriage is community property. The Washington Supreme Court,
first in Marriage of Lindsey (1984) and later in Connell v. Francisco (1995),
has applied that presumption to cohabitating couples whose relationship the
courts have determined to be “marital-like.” And this rule extends even to
assets that – on the surface – appear to be separate property.
What
does "marital-like" (or “meretricious”) look like? The Supreme Court
has listed five “relevant factors:”
·
continuous cohabitation;
·
duration of the relationship;
·
purpose of the relationship;
·
pooling of resources and services for joint
projects; and
·
the intent of the parties.
(Don’t
phrases like “pooling of resources and services for joint projects” just get
you in the mood for date night at … Ikea?)
If
one or more of those factors describes your current relationship, you may need
to rethink the household financial arrangements.
For
instance, you may be maintaining separate “his and her” bank accounts and
keeping vehicles and other titled assets in separate names. As long as those
were acquired before you updated your Facebook status to “In a Relationship,”
you can probably safely assume if you slip out the back, Jack, and make a new
plan, Stan, you don’t need to discuss much; you can leave with those assets –
even the wagon-wheel coffee table.
But
anything acquired after you started sharing housekeys and fighting over the
remote control could fall under the Connell rule.
And
this applies to enhancement in value of a theoretically separate asset. If Jack
is handy and builds a deck that increases the value of Jill’s house, that’s a
community asset – even if Jill never put Jack on the title.
This
has implications not only for non-amicable “divorce-like” breakups but when one
of the partners dies. Legal heirs of the decedent could end up battling the survivor
over who’s entitled to bank accounts and other assets.
If
division of property in a long-term but non-marital relationship comes before
the courts, it will evaluate each party’s interest in any property acquired
during the relationship and – just as in a marriage dissolution – make a “just
and equitable distribution of such property.”
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Which
is how that $8 dish can end up costing $1,000.
What’s
the solution? Many attorneys urge unmarried couples they advise to execute a
domestic partnership agreement, akin to a married couple’s prenuptial
agreement, to, in the words of Seattle attorney Elaine DuCharme, “clarify the
ownership of real and personal property, waive or affirm meretricious property
rights, and provide for the disposition of their separate and jointly acquired
property upon the dissolution of their relationship, or in the event of the
death of a partner.”
It
doesn’t sound very romantic.
But
it may head off that 15-round battle over the wagon-wheel coffee table.
And
even if you don’t think a formal written agreement is necessary, do Harry – and
me – a favor, for your own good: put your name in your books right now.
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