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Almost Hitched
Long-term Relationships and the Law in Washington State
by Tera Schreiber

The days when women aspired to live like June Cleaver are long over, and the relationships they choose have changed as well. Census for 2005 data shows that 51 percent of women live without a spouse as more and more women are rejecting the institution of marriage in favor of long-term commitments.

“We definitely didn’t want to plan a wedding, but more than that, we didn’t want our commitment to each other to be defined by a piece of paper,” says Heidi Broadhead, who recently gave birth to the child of her partner of four years. “We liked the idea that we would be always choosing to be together instead of feeling like we were bound by some sort of legal arrangement.”

Suzy Myers, who has been “happily unmarried” to her partner for 37 years, chose not to marry him in part because of her feminist values. “We began our relationship in 1969. We were protesting the Vietnam War and everything else. Choosing not to marry was sort of an extension of a protesting lifestyle. We didn’t feel that we needed government approval. Marriage was considered a patriarchal system of ownership. It just didn’t seem like we needed it.”

However, there are other women who might like to marry but are denied that option in Washington state when their partner is also a woman. Whether living in a long-term commitment out of choice or necessity, unmarried women can face a variety of complicated legal and financial issues when a relationship ends or if her partner dies. Knowing what these issues are and taking steps to address them can make a huge difference when unexpected events change the nature of the relationship.

PUTTING IT IN WRITING

Like a contract, marriage establishes a set of legal rules between two parties, and those rules instruct the handling of property, assets and liabilities in the event of death or divorce. Because unmarried couples cannot rely on any of these rules to protect them, many lawyers recommend that unmarried couples enter into contracts to define their relationship, their intentions with respect to property, assets and liabilities, and their intentions in the event that the relationship ends.

“One way for a woman to protect herself in a relationship in which she is in a weaker economic position is to enter into an agreement — a cohabitation contract or domestic partnership agreement — that would provide a way to capture the value of her domestic contributions in the event the relationship ended,” says Sands McKinley, managing partner at the law firm of McKinley Irvin, PLLC. Some legally savvy same-sex couples use the sharing of rights and responsibilities with respect to property as a way to demonstrate their commitment in the event they ever have to prove they were indeed a couple. Barbara Green and Annie Gage have spent the past 22 years of their relationship commingling assets and sharing liabilities. “We have established co-ownership of key items. We both own both of our cars, and we have a property agreement that covers our house,” says Green.

Some would caution against these very steps that some couples take to protect themselves and their relationship. “A woman should be very, very careful about signing, co-signing or otherwise obligating herself on any debts of her partner,” says McKinley. “The creditor doesn’t care about the relationship. If it ends and the partner doesn’t pay, the creditor will come after anybody who is on the hook.”

WASHINGTON DOMESTIC PARTNERSHIP LAW

In April 2007, in the wake of advocacy work by organizations like Equal Rights Washington and the Northwest Women’s Law Center, as well as key state senators and representatives, Gov. Chris Gregoire signed the Washington Domestic Partnership Law. This law is intended to clarify that domestic partners have some of the same rights and responsibilities as married couples on issues relating to the health care, incapacity and death of their partners. The protections of the Domestic Partner Law will be available to the estimated 24,000 same-sex couples in Washington state as well as all senior citizen couples who sometimes choose not to marry due to harsh tax penalties. The protections of this law will be available only to those who register with the state.

“While it’s really important, it’s not marriage,” says Nancy Sapiro, staff attorney with the Northwest Women’s Law Center. In our state alone, there are over 400 benefits that flow from marriage that are simply not available to same-sex couples.” Still, Sapiro is optimistic about the future legal climate for gay and lesbian citizens in Washington. “Given where we came from and given that we can only move forward to the extent we can bring our neighbors and fellow citizens along with us — this is a huge, seismic cultural shift that is taking place before our very eyes.”

It’s a step that helps those who wish for the legal rights and obligations that come with marriage, but it still falls short for some. “It gives me peace of mind,” says Green, “but not as much as marriage would.”

ADOPTION

Children born to married parents are presumed by law to be the children of those individuals, giving both parents equal rights and responsibilities to any child born during their marriage. When parents are not married, additional steps must be taken to establish parental rights for the non-birth parent. This becomes even more complicated for same-sex couples.

“For heterosexual couples,” explains Sapiro, “the process for establishing the parentage of the father begins with the filing of a parentage action. A man can seek to claim or disavow parental rights. The outcome is based totally on genetics.” Thus, the relationship between the couple is meaningless when establishing the parentage of a father. He can be the man who has lived with the child since birth or a man who has never seen the child in his life, but who merely had contact with the mother long enough for conception to occur.

With a same-sex couple, the second parent generally has no genetic link to support a traditional lawsuit to establish parentage of a child. However, partners can agree to a second parent adoption, so long as there are no other individuals with parental rights to the child. A second parent adoption allows a second parent to adopt a single parent’s child without terminating the rights of the first parent.

Having both parents legally proclaimed provides protections for the child, such as allowing the child to be covered by the health plans and social security benefits of both parents. However, a second parent adoption also protects the non-birth parent’s relationship with the child in the event of a death or other end of the parents’ relationship. A second parent adoption is an option in Washington, but not in every state. “We feel very lucky because we live in Washington state,” says Katie Hultquist, who is preparing for a second parent adoption so that her partner, Laura Cox, may adopt their twins, who are due very soon. “There are many places where we could not do a second parent adoption and some of the other actions we have taken to protect our family.”

“Without a second parent adoption, same-sex couples generally have to pin their hopes on the other parents’ goodwill, or engage in extended litigation,” according to Sapiro. The Northwest Women’s Law Center was successful in inspiring the creation of an equitable doctrine called “de facto parentage,” which means that the relationship is true “in fact” or “in reality” even if it is not established by law.

In a case called In Re The Parentage of L.B., a lesbian couple planned a pregnancy and raised a child for seven years before their relationship ended. The biological mother refused her former partner a continuing relationship with their child. The Northwest Women’s Law Center brought a case on behalf of the non-birth mother which worked its way up to the Washington State Supreme Court. The court found that there are situations where a parent, who is not legally established by genetics or adoption, has such a close relationship with a child that a de facto parentage relationship is created. This is an important remedy in helping maintain the relationships between parents and children who are separated by the end of the relationship between their parents. However, litigation to prove a de facto relationship is a heavy burden and an expensive process.

ESTATE PLANNING

Just about any couple can benefit from estate planning, and it can be even more useful for those whose relationships are not governed by the laws of marriage. Most people know that a will can dictate the disposition of assets upon death as well as create guardians for living children. A will can also establish a trust fund to minimize tax consequences, or to protect a minor child’s financial interests. A will can even establish burial or cremation instructions.

An estate planning lawyer can also offer other documents with additional protections. With a durable power of attorney, a person can assign to the trusted person of her choice the right to manage her affairs if she is incapacitated. With a health care directive, she can establish to what extent she would like life-saving measures to be used if she is gravely injured, as well as choose a person she trusts to enforce that directive.

THE BURDEN OF PROOF

When a marriage ends, the law has established rules on how to divide married couples’ assets and obligations. In order to access those rules, they don’t first have to prove that their marriage was valid. Also, since Washington has what is called “no fault” divorce, things that happen within the relationship have almost no bearing on the property distribution. It doesn’t matter who cheated on whom; the court must simply follow equitable principles and divide the property and assets fairly.

Likewise, at the death of a married person, the law dictates how assets will be distributed in the absence of a will. The surviving spouse can predict the rights and responsibilities that will result from such an event.

In contrast, couples ending a long-term relationship may end up in court to prove the fact of their relationship. First, it is necessary to establish what Washington state law recognizes as a “meretricious relationship” or a stable, marriage-like relationship that has legal status. While courts originally applied the meretricious relationship concept only to opposite-sex couples, that is changing, says Sapiro.

Next, she says, you basically have to show physical intimacy. “Proper inquiries include did you sleep together, did you share a bed, was the relationship monogamous, and so on.” The personal and sometimes embarrassing level of inquiry can be a huge psychological burden during an already stressful situation, and it increases the economic costs of legal proceedings.

“In all of the meretricious relationship cases I have seen, the ultimate distribution is not as equitable as it is in a marriage case,” explains Sapiro. “The courts tend to pick apart the relationship, dividing it up into segments and treating only certain components of the relationship as covered by the meretricious relationship doctrine. Ultimately what happens is that women lose.”

So, in a meretricious relationship where the partners did not live together for a year in the middle of their relationship for whatever reason, the property acquired during that time is more likely to be treated as separate property, and not subject to division. On the other hand, in a marriage, a separation of a year is unlikely to affect the outcome of the property distribution. “With a marriage certificate in hand, none of this is questioned,” says Sapiro. “Same-sex relationships are put under a microscope that heterosexual relationships are not.”

BENEFITS

Some employers opt to provide the same benefits for domestic partners that they offer to the married spouses of their employees. Yet, many still do not. Because the City of Bellevue refused to offer such benefits, Faun Patzer, a 17-year veteran of the Bellevue Fire Department, became a plaintiff in a lawsuit brought by Lambda Legal. Patzer sought to have her partner included in her benefits package in the same way that her other colleague’s legal spouses were.

For years, Patzer’s partner, Carrie Wurzburg, has had no access to the excellent health care benefits that Patzer receives as an employee of the City of Bellevue. Because Wurzburg is self-employed and suffers from heart irregularities, the costs of her medical care have been a huge financial burden. To get comparable health care coverage, Wurzburg would have to pay about $600 a month. The cost the couple would pay to add Wurzburg if she were eligible for Patzer’s plan would be just over $60.

Patzer’s lawsuit apparently got the City of Bellevue’s attention. On June 4, the Bellevue City Council approved an amendment to the city code that will extend family benefits to the domestic partners of city employees — whether straight or gay. The city has assured its constituents that the change in benefits will be implemented before the end of September. Yet, Borelli’s job is not done. “We will watch closely over the implementation process,” she explains. “Our primary concern is to ensure that the benefits provided are fully equal. The lawsuit will remain pending in court until we receive a complete resolution to that question.”

In the meantime, Patzer and Wurzburg have struggled tremendously with this issue. “Carrie doesn’t get exams she should have and we just hope and pray that she doesn’t have any issues,” says Patzer. Patzer and Wurzburg’s situation illustrates why this is such an important issue from the perspective of Lamdba Legal. “Our society is structured so that access to health care benefits depends on access through employment,” says Borelli. Thus, when domestic partners cannot obtain insurance through a partner’s employer, health insurance can be completely out of reach.

Sometimes discrimination about benefits applies to opposite-sex couples. Myers has been covered as a domestic partner on the health insurance policy of her partner, Jody Granatir, through the Seattle Public Schools for many years. Granatir retires this year and his health insurance will switch to a Washington state plan for his retirement. Myers will not be covered under that plan because they are an opposite-sex couple and the state’s plan only provides domestic partnership benefits for same-sex couples.

TAKING CONTROL

Without a doubt, unmarried women in committed relationships are at greater legal risk than are married women. As a result, many couples who do not have the option of marriage are using their political energy to demand it. “It’s interesting,” muses Myers. “When we chose not to get married, we considered ourselves progressive, and we didn’t need any state sanction for our relationship. Now, progressives are asking for the right to marry because it is not available to them.”

Whether the protections and obligations of marriage will ever be granted to those who cannot access them now is yet to be seen. In the meantime, there are steps that women can take to protect themselves. Simply being aware of the legal risks they face can help them assess whether and how to structure their legal affairs, and where to place their energy in advocating for themselves.

Tera Schreiber, JD, is a member of the Washington State Bar Association and a freelance writer. This article is not intended as legal advice, but she hopes it will inspire women to contact a lawyer to take steps to protect themselves and their families.

©2007 Caliope Publishing Company