§ 12.02 HISTORY OF CASE LAW IN WASHINGTON FOR NONMARITAL COUPLES (UNMARRIED COHABITANTS)
Property issues arise out of many unmarried cohabitations. The law has changed significantly over time in Washington state. This section discusses the evolution of that law.
[1] Legal Doctrines During the Creasman Era: Pre-1984
For many years, when dividing property of unmarried cohabitants, Washington courts distinguished between "meretricious" and "innocent" relationships. A "meretricious" relationship was one in which individuals cohabited with the knowledge that they were not legally married. In an "innocent" relationship, at least one partner believed the marriage was valid. Courts characterized and allocated property differently depending upon the determination of the nature of the relationship. Courts made an equitable division of the property of the parties to an "innocent" relationship. See, e.g., Poole v. Schrichte, 39 Wn.2d 558, 236 P.2d 1044 (1951). In a "meretricious" relationship, however, the courts would award property based on which party held legal title. See Creasman v. Boyle, 31 Wn.2d 345, 196 P.2d 835 (1948). In Creasman, the court declared: "[I]n the absence of any evidence to the contrary, it should be presumed as a matter of law that the parties intended to dispose of the property exactly as they did dispose of it." Id. at 356.
This language became known as the "Creasman presumption." Its application often resulted in unjust divisions of property in which one party's (usually the woman's) nonmonetary contributions to the couple's economic well-being were disregarded. Over time, courts openly criticized the Creasman presumption and used a variety of theories to avoid the inequities resulting from its application. Among the theories used to avoid those inequities were express or implied contract, implied partnership or joint venture, constructive or resulting trust, cotenancy, and tracing the source of funds. As use of these theories increased, the line between "meretricious" and "innocent" relationships began to blur.
In 1976, the Washington Supreme Court, in dicta, addressed alternatives to the use of the Creasman presumption in detail. See Latham v. Hennessey, 87 Wn.2d 550, 553-55, 554 P.2d 1057 (1976). In Latham, the court opined that it may be time to overturn Creasman entirely. Id. at 555. Ultimately declining to do so, the court stated: "However, in light of the facts of this case and the trial court's findings, we are not squarely confronted with the application of the presumption and believe it would be inappropriate to utilize this case as a vehicle to overrule Creasman." Id. The court concluded: "We are not averse to a reconsideration of the Creasman presumption when presented with an appropriate set of circumstances." Id.
The court further stated:
Even though it is not necessary to pass on this issue in the present case, we deem it appropriate to comment on the continuing validity of this legal presumption. Our recent decisions have criticized the Creasman decision. In West v. Knowles, 50 Wn.2d 311, 313, 311 P.2d 689, 691 (1957), we restricted Creasman "in its application to its own particular facts." In In re Estate of Thornton, 81 Wn.2d 72, 77, 499 P.2d 864, 866 (1972), we stated: "We are dubious about the continuing validity of this legal presumption or fiction, accepted and applied by the court in Creasman . . . ." We also have developed numerous exceptions to the Creasman presumption in order to avoid inequitable results. These exceptions include: (1) implied partnership or joint venture . . . ; (2) constructive trusts . . . ; (3) resulting trusts . . . ; and (4) express or implied contract to make a will . . . .
There also appear[s] to be a viable alternative approach to the Creasman presumption and its exceptions. A court could ascertain whether there exists a long-term, stable, nonmarital family relationship. Such relevant factors include continuous cohabitation, duration of the relationship, purpose of the relationship, and the pooling of resources and services for joint projects. If a relationship exists, it is reasonable to assume that each member in some way contributed to the acquisition of the property. A court could then examine the relationship and the property accumulations and make a just and equitable disposition of the property. Also, if warranted by the facts of a particular case, the court could apply the community property laws by analogy to determine the rights of the parties. . . . Ajoint and equitable disposition of property entails considering "the respective merits of the parties, through whom the property was acquired, monetary and labor contributions, whether or not children were born of the relationship and who is to care for them, and the general condition in which the termination of the relationship will leave each of the parties. . . . Considerable authority supports the adoption of the just and equitable approach. . . . As we have stated in In re Estate of Thornton, 81 Wn.2d 72, 79, 499 P.2d 864, 867, per Justice Finley: "Arguably, Creasman should be over-ruled and its archaic presumption invalidated."
Latham, 87 Wn.2d at 553-55 (internal citations omitted).
[2] Legal Doctrines During the Lindsey/Connell Years: 1984-1999
In the years following Latham, courts moved towards the outright abandonment of Creasman. Significantly, Division I of the Court of Appeals had held that the provisions of RCW 26.09.080, which govern the division of property upon dissolution of a marriage, should govern disposition of property acquired by a man and woman who had lived in a relationship "tantamount to a marital family." Warden v. Warden, 36 Wn. App. 693, 698, 676 P.2d 1037 (1984). The appellate court in Warden could have upheld the trial court's equal division of the family home on the basis of title alone, because title was in both parties' names, but instead it faced the issue squarely and applied the "just and equitable" standard of RCW 26.09.080. Later that same year, the Washington Supreme Court finally expressly overruled Creasman in In re Marriage of Lindsey, 101 Wn.2d 299, 304, 678 P.2d 328 (1984).
In Marriage of Lindsey, the Washington Supreme Court held that courts must "examine the [meretricious] relationship and the property accumulations and make a just and equitable disposition of the property." Id. at 304 (quoting Latham, 87 Wn.2d 550). The Lindsey court declined to limit its holding to cases involving "stable and significant" relationships, as suggested in Latham. See id.; see also Latham, 87 Wn.2d at 553-55. Instead, the court reasoned that a trial court must examine each case on its facts and apply a three-pronged test: (1) First determine whether a meretricious relationship existed. If so, (2) then a trial court must evaluate each party's interest in the property accumulated during the relationship. Then, finally, (3) a trial court must make a just and equitable distribution thereof. Marriage of Lindsey, 101 Wn.2d at 304.
The Supreme Court did not indicate what factors should be considered in making the distribution; it required only that the division be "just and equitable." Id. Consequently, trial courts were accorded wide discretion under the Lindsey decision. It appeared at that time that the standard for division of property in either an "innocent" or a "meretricious" relationship differed very little from that for division of property upon dissolution of marriage.
The Supreme Court's decision in Marriage of Lindsey, 101 Wn.2d 299, was both broader and narrower than Division I's decision in Warden, 36 Wn. App. 693. Although the Lindsey court did not limit equitable division of property to long-term, stable relationships, neither did it go so far as to hold expressly that the community property statute governed division of property for unmarried cohabitants. In subsequent years, courts consistently required significantly more than a casual relationship before they divided property other than as titled, but even if they were not expressly applied, the factors listed in RCW 26.09.080 remained important in determining an equitable division.
The Warden court further emphasized that trial courts should consider each party's nonmonetary, as well as monetary, contributions to the couple's property acquisitions when determining an equitable division of property. 36 Wn. App. at 696. The court stated: "If we resolve this problem in terms of dollars only, we disregard the contributions made by [one partner's] homemaking and child rearing." Id.
Although the Latham court had envisioned changes in treatment of nonmarital couples only for those in long-term relationships, the Lindsey rule began to be applied to a variety of fact patterns, even to couples in short-term relationships. For example, in In re Marriage of DeHollander, 53 Wn. App. 695, 770 P.2d 638 (1989), a couple began dating in August of 1984, began living together in November of 1984, became engaged in December of 1984, married in March of 1985, and separated in September of 1986. The court held that property purchased in January of 1985 with husband's $2,500 down payment in the husband's name, but picked out together, should be treated as community property based upon "the parties' intent, the nature of their relationship at the time they acquired the property, and their separate joint efforts with respect to it . . . ." Id. at 699.
Lindsey was applied in a dissolution wherein the parties had resided together before marriage to determine the characterization of property at the time of marriage. See, e.g., In re Marriage of Pearson-Maines, 70 Wn. App. 860, 855 P.2d 1210 (1993).
Between 1984 and 1999, Division I repeatedly confirmed that the division of property in meretricious relationships was to be determined after application (by analogy) of RCW 26.09.080. See Foster v. Thilges, 61 Wn. App. 880, 812 P.2d 523 (1991); see also Connell v. Francisco, 74 Wn. App. 306, 313, 872 P.2d 1150 (1994), aff'd...
