First Comes Love, Then Comes Marriage? Applying Washington's Community Property Marriage Statutes to Cohabitational Relationships

• Publication year: 1996

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 20, No. 2WINTER 1997

First Comes Love, Then Comes Marriage? Applying Washington's Community Property Marriage Statutes to Cohabitational Relationships

Jennifer L. King(fn*)

I. Introduction

"First comes love, then comes marriage....." Not necessarily. This old jump rope chant may now have a new twist: "First comes love, then comes cohabitation." And why not? After all, this is the '90s. For many couples, marriage is no longer the only option when considering life together. What is marriage anyway but a piece of paper from the state, or a blessing from a religious institution from which many have either grown away or with which many had no connection at all? As society's views of cohabitation have changed, so have the ways that Washington courts treat property held by couples in cohabitational relationships.(fn1)

To understand the significance of these changes, it is important to analyze the treatment of marital property(fn2) under Washington's community property law. Generally, community property law provides that when a man and a woman marry, they are treated as a type of partnership.(fn3) Equality forms the basis of this legal relationship: All wealth acquired by either spouse during the marriage is shared due to the presumption that each spouse contributed to the prosperity of the marriage. It naturally follows that each spouse acquires an equal right to the property after the community (partnership) terminates.(fn4)

In promoting the general principle of equality, Washington law recognizes certain rules and presumptions. For instance, property acquired during marriage is presumed to be community property.(fn5) When separate property is commingled with community property, it becomes community property; when one spouse incurs an obligation, the community is presumed obligated.(fn6) Also, agreements that disaffirm community property are subject to a higher standard of proof than those that affirm community property.(fn7) Although most married couples do not know the particulars of these rules and presumptions, they do know that saying "I do" will subject their property to a panoply of statutory rules upon death or dissolution.

Unlike married couples, until recently, cohabitants could not expect Washington courts to apply the rules and presumptions found in community property statutes.(fn8) In fact, courts historically refused to apply any special considerations to cohabitants at all. This view was embodied by a rule of law that reigned for over thirty-six years: the "Creasman presumption."(fn9) This presumption held that, absent any evidence to the contrary, the way property was titled at the end of a cohabitational relationship was presumed to be the way the parties intended.(fn10)

However, beginning with the 1984 case of In re Marriage of Lindsey,(fn11) the distinction between courts' treatment of marriage and cohabitation began to blur. With Lindsey, the Washington Supreme Court overruled the Creasman presumption.(fn12) In its place, the Lindsey court adopted a rule requiring a "just and equitable" disposition of cohabitational property based on the nature of the relationship and the nature of the property.(fn13) This rule was derived from direct analogy to the "just and equitable" dissolution statute, Revised Code of Washington (RCW) 26.09.080, which lists the factors a court is instructed to use in dividing up a couple's property upon the dissolution of their marriage.(fn14)

Analogizing to the marriage statute for cohabitational relationships is neither wise nor necessary. Statutory analogy is not wise because the scope of the analogy is unclear and therefore can lead to ad hoc decisions and judicial legislation. In addition, statutory analogy is unnecessary because the courts had managed to "do equity" for cohabitating couples by using various equitable means to get around the Creasman presumption.

The Washington Supreme Court's most recent decision dealing with property distribution after cohabitation, Connell v. Francisco,(fn15) demonstrates two problems of scope in applying the "just and equitable" statutory analogy. First, should a court refer to all of the "just and equitable" dissolution statute by considering both the "separate" and the "community" property of a cohabitational relationship when making a just and equitable distribution?(fn16) Second, because the "just and equitable" dissolution statute is interdependent with other marital statutes,(fn17) can it be meaningfully applied by analogy without also applying other marital statutes by analogy?

Even if the problems with the scope of the "just and equitable" statutory analogy can be solved, such a solution is not necessary because of the continuing availability of the equitable means that were used prior to Lindsey Both Lindsey and Connell gave the Creasman presumption more credit as a nemesis than it deserved. The Creasman presumption was an ineffectual vestige of a bygone time. The last time the Creasman presumption was applied was in the Creasman case itself. Virtually every appellate or Supreme Court case between Creasman and Lindsey dealing with the distribution of property after a cohabitational relationship cited Creasman almost by rote, and then found that the presumption did not apply.(fn18) Instead, the courts used various equitable means to get around Creasman.

Because Creasman was not used, the Lindsey court's overruling of Creasman did not make property distributions after cohabitation any more equitable. Lindsey's analogy to the marriage statutes merely adds another layer of complication to an area of law that had functioned quite well using equitable means to avoid the Creasman presumption. Connell demonstrates that statutory analogy will lead to more unpredictability as courts attempt to determine the exact scope of that analogy. The "exceptions" to the Creasman presumption should be the rule to ensure the flexibility required by equity in these types of cases, while keeping distinct the lines between marriage and cohabitation.

To promote this thesis, Part II discusses the facts of Creasman and then dispels the myth of importance surrounding its presumption. Part III reviews the facts of Lindsey, looks at whether cohabitation and marriage can ever be analogous, then attempts to identify trends and find predictability in the cases between Lindsey and Connell. Part IV summarizes the facts of Connell and concludes that statutory analogy produces no better results than existing equitable doctrines, while leading to much greater unpredictability. Finally, Part V argues that the Creasman "exceptions" offer an equitable and more predictable way of distributing cohabitational property in a manner that meets the expectations of the cohabitants without infringing upon the legal relationship of marriage.

II. CREASMAN: THE PRESUMPTION THAT WASN'T

From 1939 until her death in 1946, Caroline Paul and Harvey Creasman cohabitated as "husband" and "wife." Caroline was Caucasian and Harvey was African-American. During Caroline and Harvey's cohabitation, Caroline, in her name only, contracted to purchase land occupied by a dilapidated shack and established a bank account. Harvey's wages from his work in the Bremerton Navy Yard provided for the couple's living needs, including payments on the real estate contract, home improvements, and the purchase of savings bonds. Caroline maintained the home and managed the money (generally in her name), thus allowing the couple's assets to grow. When Caroline died, Harvey claimed entitlement to the home, household goods, and savings account. The trial court awarded half of the claimed property to Harvey and half to Caroline's estate. Both Harvey's and Caroline's administrators appealed.(fn19)

On appeal, the Washington Supreme Court cited the rule that, in the absence of a trust relationship, property acquired by parties during cohabitation belonged to the party in whom the legal title stood.(fn20) The court then rejected Harvey's resulting trust theory,(fn21) concluding that the property was titled as the parties had intended.(fn22) In terms reflective of the moral climate of the day, the court stated that "[t]he contract between them, if any there was, . . . was simply an agreement or arrangement for a protracted illicit cohabitation, originated in premeditation and carried out in accordance with their deliberate choice and design."(fn23) Further, the court stated that the case was illustrative of a situation "where this court can, and should, declare that it will leave the parties exactly where it finds them with respect to their property. . . ."(fn24)

These comments, and the rejection of the resulting trust theory, led the court to declare the Creasman presumption: "[U]nder these circumstances and in 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."(fn25)

The Creasman presumption ostensibly ruled for thirty-six years until overruled by Lindsey. It is possible that the Creasman presumption was used at the trial court level to decide cohabitational property disputes with cool efficiency. At the appellate and Supreme Court levels, however, this did not occur. In only one appellate case, In re Marriage of Rhoads, (fn26) did the court claim to...