Michigan is a pro-marriage state. Public policy favors marriage between domestic partners and our laws reflect that favoritism. Indeed, Michigan does not recognize what is referred to as “common law marriage.”
Over my career as a family law lawyer, I have had many potential clients query me about their “rights” when dissolving their live-in relationship with their partner. Such relationships are termed “meretricious”, which essentially means a stable, marital-like relationship where both parties cohabitate with knowledge that they are not lawfully married. Often a meretricious relationship has lasted for decades and involves not only shared assets, but years of shared earnings as well.
Just as marriage partners devote years of building up assets and supporting each other, the same is true of unmarried domestic partners. The problem is that the laws and equities applicable to divorcing married partners do not apply to meretricious relationships in Michigan. Thus, while spousal support/alimony is awarded in appropriate divorce cases, there is no such thing as “palimony” in Michigan. This is true even if domestic partners lived together for 25 years, and one sacrificed a career to stay home and raise children and care for the home while the other supported him/her. In other words, one of the ways our public policy discourages people from partnering outside of legal marriage is to deny recognition of basic equitable rights in property division when these partnerships dissolve. Up until now, I have advised that the client file an action in circuit court for dissolution of partnership, much as a business partnership is dissolved. Such lawsuits can be quite successful.
However, one of my colleagues, Armene Kaye, recently shared what I consider to be invaluable information on presenting a broad set of claims in meretricious relationships to the courts – just not family court. Her menu of options is a real education in creative legal thinking. Where one theory may not work, there are others that should be considered. Each case must be determined on its particular facts and merits.
Accordingly to Armene, [w]hether domestic partners are gay or straight, they are entitled to due process under the law” and equal protection as well. Armene recommends the filing of a civil suit to resolve property disputes between persons dissolving a domestic partnership because it promotes settlement. She accurately notes that mediation is mandatory in almost all circuit courts throughout Michigan, and given the cost of discovery and litigation, putting a domestic partnership dispute into legal suit has a strong likelihood of promoting settlement through mediation before the case ever comes before a judge for trial. In that way, filing a law suit is a foot in the courthouse door, so to speak, without needing to test legal theories before a judge who is likely to view domestic partner claims with a jaundiced eye.
Armene utilizes a variety of recovery theories, including unjust enrichment/constructive trust, fraud (bad faith promise), quite title, quantum meruit, claim and deliver/conversion (if personal property is involved), breach of contract (express and implied in fact), request for injunctive relief and yes, dissolution of partnership. The goal in all these theories is to consider that both members of the meretricious relationship have contributed to its economic success. Regardless of how property might be titled, or who wrote the check, neither partner should be sent from the meretricious relationship impoverished while the other maintains all the benefit of the labor contributing to the accumulation of property over a period of years.
Not long ago, the only lawful marriage recognized was that between a woman and a man. Given the vast numbers of people who are opting for meretricious relationships rather than marriage (whether gay or straight), I predict that a day will come – and hopefully soon – when the equitable property rights of domestic partners will also be recognized and honored in the State of Michigan.
