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Friday, May 16, 2014

Boulds v. Nielson - Just Because You Weren't Married Doesn't Mean You Won't End Up in Court

Cohabitation has quickly become "the new normal" for couples in the U.S., with women more commonly choosing to live with men first before marriage, and many of those relationships never being legally formalized.

However, Manhattan divorce attorneys know that just because a couple wasn't married doesn't necessarily mean that disputes won't be handled in court, or that former cohabitants won't have to divide property or pay support.

In the recent case of Boulds v. Nielson, the Alaska Supreme Court supported the lower court's findings, which essentially handled the separation of a cohabiting couple much the way it would a divorcing one.

Here, the pair were together 16 years. During that time, they lived together, raised children together and owned property together. He claimed her as a dependent on his taxes. However, they never married.

The court determined that their union had been a legal domestic partnership, and as such, matters of child custody and property and asset division could be appropriately litigated in family court.

The proceedings were largely uncontested, save for the issue of certain insurance and retirement accounts. Namely, these involved an insurance death benefit, a 401(k) retirement account and a union pension. The holder of these counts argued that they belonged to him alone. His former girlfriend argued otherwise.

The court found that the insurance death benefit and the 401(k) account were his alone, but the union pension benefits were not, and could be considered a domestic partnership asset subject to division.

The man appealed that federal law barred division of his union pension with a non-spouse, and that the lower court had erred in considering only his initial intent to share the pension with his then-girlfriend for the benefit of their kids.

However, the state high court rejected the notion that federal law barred distribution of union pension benefits to non-married spouses. Under state law, the court found, she was entitled to half.

This mirrors what we might expect to see at the conclusion of a New York City divorce trial, though each state varies a great degree on what it considers to be a "common-law marriage" or a "domestic partnership," and legal protections vary greatly.

In New York, domestic partnerships can be obtained through the city clerk's office. Though they were more heavily utilized for homosexual couples before gay marriage was green-lighted, they are still available, and aren't limited to gay and lesbian couples. Among the benefits of a domestic partnership:

  • Entitlement to health insurance benefits;
  • Authorization to be awarded monetary compensation for a partner who dies in the line of duty as a firefighter, police officer, school crossing guard, correctional officer or sanitation worker - or any other city worker killed in the course of duty.
  • Be considered in housing subsidy arrangement;
  • Afforded all next-of-kin visitation rights in hospitals, nursing homes and health care facilities;
  • Entitlement to receive workers' compensation benefits from eligible spouses.

Still, equitable division of property in the event of a separation for a couple with a domestic partnership or who are simply cohabiting is not necessarily a given.That's why we usually recommend drafting a cohabitation agreement that spells out all relevant division of property, should you decide to part ways.

These matters can be more complex than they appear on the surface, and the advice of an experienced family law attorneys is typically warranted.

If you are contemplating a divorce in Manhattan, call our offices at (718) 864-2011.


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