Take some advice from Harry — put your names in your books right now
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.”
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.”
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.
