by Bruce L. Dorner
In our ever-changing society it is common for couples to set up housekeeping without benefit of marriage. For some a “domestic partner” is of the opposite gender. For others, the partner is of the same gender. Ever wonder what legal protections are available if the relationship fails?
For purposes of this article we’re assuming there are no children from this relationship. Add children and we’ve got a far more complex problem dealing with child support, custody and parental responsibilities.
New Hampshire has a very aggressive domestic violence law. It applies to both married and unmarried couples. It applies to a multitude of interpersonal relationships. The domestic violence laws permit a judge to order one party removed from the jointly shared residence. The judge can order both parties to stay away from each other and can order financial support. These powers apply only when there is a showing of emotional or physical violence. The penalties are severe and not to be sought lightly.
We have a statute which recognizes a limited form of common law marriage. In essence, if a man and woman (a) live together for more than three years, (b) acknowledge each other as husband and wife, (c) have a reputation in the community that they were married, and (d) one of them dies during the relationship, then the survivor may claim common law spouse status. This can create some very undesirable results in the distribution of estate assets.
We have a stack of laws dealing with divorce. However, we don’t have a lot of law dealing with domestic partners in New Hampshire. So, what happens when unmarried Harry and Sally decide that they each want to go their separate ways. How do they share and divide all of the jointly acquired furniture, TV sets, cars and combined bank accounts? What happens when they can’t work out the problem of who gets which items and who pays which bills?
Well, we certainly can’t use the divorce court since Harry and Sally were never married. We can’t use the domestic violence laws since both of them are behaving politely toward each other. So, how about trying some good old common sense. Find a mediator! Locate a reasonable, rational person with common sense who knows both parties and is trusted by both parties. Sit down and put all the questions on the table. Use the services of this mediator to resolve the conflict. Sometimes a mediator can be a friend, relative, neighbor, clergy person or attorney. The key is to find someone both parties will trust without reservation.
If Harry and Sally can’t agree on a mediator then it’s likely they’ll both need attorneys. Sometimes lawyers can resolve conflict by treating the problem in a fashion similar to a partnership dispute. It is far better to negotiate a settlement than to rush off to the courthouse. In fact, there’s a question as to whether the court will get involved in enforcing verbal agreements between parties living without benefit of legal status (marriage.) Look for attorneys who have a reputation in the area of mediation and Collaborative Law. I am one of a select group of New Hampshire attorneys participating in the Collaborative Law Alliance of New Hampshire.
If a trip to the courthouse is necessary, there may be an issue selecting the right court. Since there is no marriage, we’ve already determined that the divorce court can’t handle the dispute. We could go to the civil court and ask that the “partnership” be dissolved and the assets distributed. However, this may not be enough as there may be issues of future payments which might fall outside traditional partnership laws. We’ll probably make the trip to the Equity Division of the Superior Court to seek fair treatment of the dispute. In any event the court is not likely to award compensation for personal or domestic services, but will probably handle the division of tangible property, real estate and money items.
To minimize the risk it might be worthwhile to consider a written “household management agreement” in which the rules of living together, sharing and acquiring and disposing of assets are detailed. I wish there were a simple answer. Who knows, in the next session of the legislature there may be a proposal to deal with this thorny issue!
This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.