Open Relationships Still Meet the Marriage Test

Unlike most other states that only apply marital law to legally married couples when they get divorced (including both gay and straight couples or those in marriage-equivalent state registrations), the courts in Washington State have adopted a unique approach. They are authorized to apply marital rules to unmarried couples, but they do so as the “equitable standard” for couples that break up. Initially this rule only applied to straight couples, but for the past decade or so it also has been applied to same-sex couples.

Thus, the marital rules of property division are not applied to every unmarried couple and they aren’t applied rigidly, and the judges have a great deal of discretion when it comes to applying the rules. The judges get to decide which couples meet the five factors for coming under the court’s equitable marriage rules (continuous cohabitation, significant duration, shared purposes (i.e. love, companionship, family), pooling of financial resources, and intent to be in a “marriage-like” relationship). Dealing with these rules can lead to some very interesting trials, as the court needs to evaluate the couple’s lives according to these standards before any property or support awards can issue. Keep in mind that legally married couples don’t need to meet any of these requirements, though most of them probably would if asked.

In a recent case (In Re Meretricious Relationship of Long and Fregau, 2010 WL 5071860) the appellate court upheld a ruling that concluded that the two men were in a relationship that met the five crucial standards. (By the way, meretricious just means not legally married– it doesn’t mean immoral). Having reached this conclusion it was appropriate for the family court to apply marital law to their break-up, so they divided up the assets acquired during the relationship between the two partners. Interestingly, one of the partners was still legally married to a woman during the first eight years of their relationship, but that didn’t bother the judge.

And, what is most interesting to me is that the court acknowledged that theirs was an open relationship, and then disregarded that fact when making the legal ruling. It’s great that none of the judges had any problem in applying the equitable marriage rules to a gay relationship, but what really impresses me is that no one was bothered by the admissions of infidelity.

And so it appears that the concept of “marriage-like” has been modernized to include open relationships — at least in Washington State. This result is fair — especially since the doctrine of no-fault divorce was instituted decades ago. Infidelity between straight married spouses is not supposed to result in any different distribution of assets and property and there is no reason gay couples should be treated any differently than straight couples with open relationships, And so it appears that at least in Washington State they are not.

Proposition 8 Standing Question Sent to State Court

In a procedural move that was hinted at during the recent oral arguments at the 9th Circuit Court of Appeals on the Proposition 8 appeal, the “standing” question has been referred to the California Supreme Court. The federal Judges have acknowledged that because the state officials have declined to appeal Judge Walker’s ruling tossing out Proposition 8, the appeal can’t go forward unless the proponents of Prop 8 are allowed to pursue their own appeal. Interestingly, things would gone been very differently had the Republicans won the governor’s or attorney general’s race, as their candidates had said they would pursue the appeal. Instead, with the Democratic victory for both positions, the question of standing remains a threshold question for the Court of Appeals. Until they decide that the proponents have standing, they can’t rule one way or the other on the validity of Proposition 8 – and if they can’t issue a ruling then Judge Walker’s wonderful decision would be the final one.

The federal court could have answered the standing question on its own, even though it’s a question of state law, but instead, they have asked the California Supreme Court to tell them whether they think the proponents have the right to pursue an appeal of Judge Walker’s decision. The California justices have the option of declining the request or answering the question — and if they agree to answer it then they will ask for more briefs from the lawyers and probably have oral arguments on the issue. Chances are they will take up the question, and this will delay the case for as long as a year. Then, if they rule that the proponents have standing the case will go back to the federal court for a ruling on the substantive aspects of the appeal. If they refuse to take up the question it will be up to the federal judges to make the ruling.

There are two political angles to this recent turn of events that warrant particular attention. First, most progressive groups want to see an expanded approach to standing, so that political groups can pursue appeals regarding their initiatives. Thus, the effort to prevent the proponents of Prop 8 from pursuing an appeal runs counter to this broader political approach. Second, this procedural delay all but guarantees that the case will not be decided by November 2012, when there will probably be a new ballot initiative to repeal Proposition 8. If that repeal is successful the legal case will become moot, and so we will never know how the United Supreme Court would rule on these issues – which is fine by me!