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Family Law News Letters
"SAFE SURRENDER" IS A GOOD LAST RESORT FOR PARENTS
By Kim K. Steffan, Attorney
Copyright 2007
What can a young parent do when she has just given birth to a baby she feels she cannot care for, and she does not want to let anyone know of the birth?
The "Safe Surrender" law lets such panicked parents safely and anonymously give up the baby without facing criminal charges for abandonment.
This law is needed because the risk of homicide is 10 times higher during the first day of life than any other time, according to State statistics.
A UNC study estimated that 85 newborns were killed or left to die by a parent annually in the United States. The parents who felt desperate enough to
try to kill their newborns had varied characteristics - all races, married and unmarried, various ages (the average age was 19), and one-fourth of
them had even received prenatal medical care.
Texas was the first state to see the need for Safe Surrender in 1999. Now 46 states have these laws - Alaska, Hawaii, Nebraska and Vermont do not.
The age for surrendering a baby varies by state from 72 hours to 30 days.
North Carolina’s law allows a parent (father or mother) to surrender an unharmed newborn up to 7 days old with any of the following persons, who are
required to accept it:
- Healthcare workers on duty at hospitals, health departments and non-profit clinics;
- DSS workers who are on duty or at the Department; and
- EMS workers who are on duty or at the station. The parent may leave the child with any other responsible adult,
but that adult is not required to accept the child.
If a parent does this, she will not have broken any law, and can remain anonymous. There will be no criminal charges for abandonment.
If there has been abuse or neglect prior to the surrender, however, the parent may face criminal charges for that.
Only a parent can surrender the newborn, not a grandparent or any other person.
It is important that the surrender can be anonymous. The person receiving the baby may ask the parent for identity
or medical history, but must tell the parent that this information is not required. A parent is encouraged to provide medical
information which may help in caring for the baby.
The person receiving the baby should protect the baby’s physical health and well-being, and notify DSS or law enforcement. If the child is surrendered to a hospital
or clinic, the medical personnel there will likely do a medical exam so they know if there are any current medical needs.
Social services will take custody of the surrendered baby. DSS will place the baby in a foster home or other temporary home. After 60 days, the baby will be
available for adoption and parental rights will be terminated. If a parent changes his/her mind about the surrender within that 60 days, the baby can be returned to
the parent, provided there are no safety issues or possible child abuse concerns.
Safe Surrender does not replace a parent deciding before birth to give a baby up for adoption. Safe Surrender is a last resort for parents who have not made that
decision in time, but then find themselves in a desperate situation upon birth.
More information is available at the N.C. Health and Human Services website www.safesurrender.net.
Informational brochures are available at www.ncbar.org or by calling my office.
ANNULMENTS ARE HARD TO COME BY IN NORTH CAROLINA
By Kim K. Steffan, Attorney
Copyright 2006
The calls - they come in a few times a year - go something like this: "I met this person the other night. I thought
it was love. We got married. We both decided it was a bad idea! Since we've only been married 2 days, can we get an
annulment? I don't want to have to wait a year to get a divorce when I've only been married 2 days."
I usually have to give these callers bad news. Annulments are hard to come by in North Caroline. By statute, annulments are available if:
1. You've married someone you are related to closer than first cousins or someone who is your double first cousin
(imagine what that would do to your family tree!)
2. One of the couple is under 16 and the other is over 16, unless there has been prior court approval or unless
the young lady under 16 is pregnant;
3. You've married someone who is already married (bigamy);
4. One of the parties was legally incompetent, meaning that he or she has been or could be declared incompetent
and in need of a guardian.
Most likely, the legislature didn't want a "shortcut" to get out of marriages right away because they wanted marriage to
be entered seriously. Legislators may have believed that having a rule that marriage cannot be undone easily would cause couples
to reflect more before tying the knot (although that obviously hasn't worked with the callers I'm writing about).
As you can see from the list, there is nothing in the statute allowing annulments simply because marriage has been
very brief or has not yet been consummated. If you don't fit one of the listed categories, under North Carolina law
you and your spouse must be separated (out from under the same roof, and acting like you are separated) for one year
before either party can file for divorce. Some other states allow divorce after shorter period of separation for
residents of those states, but moving your residence would be necessary.
On a related question, North Carolina law does not recognize common law marriage. In North Carolina, a valid marriage
occurs only after obtaining a marriage license and having the marriage performed by an authorized minister, or by a
magistrate, or by the customs of any religious denomination or any recognized Indian tribe. Where common law marriage is
recognized, like in South Carolina, couples are regarded as married if they have resided together as if they were husband
and wife for some substantial period of time, but have never had a marriage license.
The N.C. legislature just repealed a very old law making it a crime for an unmarried man and woman to cohabit. Although
district attorneys did not enforce that law, it recently cost a Pender County Sheriff’s Office Dispatcher her job, bringing
the law to the legislature’s attention.
Since 1995, North Carolina has had a law making marriages between same gender persons not valid here, even if they were
lawfully entered in another state. This statute was enacted shortly after Hawaii decided to allow same-gender marriages.
North Carolina allows persons under 18 to marry under some circumstances. Permission by a parent having sole or joint
legal custody enables someone between 16 and 18 to marry; consent of both parents is not required. Persons between 14 and
16 can marry if the young woman is pregnant or has had a child, but only if a judge concludes it is in the best interest
of the underage party or parties to marry.
Some of North Carolina’s laws about marriage are as old as the state itself, and some are quite new. Because society’s
ideas about marriage change over the years, laws change too, although not always at the same pace.
CHILD SUPPORT IN NORTH CAROLINA
By Kim K. Steffan, Attorney
Copyright 2003
Q: How is child support set in North Carolina?
A: Child support is usually set by the N.C. Child Support Guidelines. The legislature adopted the
Guidelines in 1994 to make child support more consistent and predictable.
In most cases, child support is calculated on a child support worksheet. The idea is that each parent contributes to
child support in proportion to his/her share of the combined gross incomes. The worksheet and calculations take into
account several factors:
- Each party’s gross (before tax) income. Gross income is used because parties can manipulate some deductions
to reduce their net.
- Each party’s legal obligation to support other children.
- The children’s living arrangements. A different worksheet is used for primary physical custody, joint/shared
legal custody, and arrangements where one child lives with
one parent and another child lives with the other parent.
- The chart “lookup” number, which is described below.
- Children’s health insurance premiums and work-related day care expenses.
- Extraordinary expenses, as described below.
A legislative study commission determined how much parents in different income groups spent on child-related expenses for
a given number of children. The study commission included both children’s individual expenses (like clothing and school
supplies) and a share of fixed household expenses (like rent and vehicle expense). That “lookup” number for each income
group is in a chart, with entries for one child, two children, etc.
Certain other costs are added to the lookup number, such as the children’s portion of health insurance premiums and
work-related day care expenses. Judges have discretion to add “extraordinary expenses”. These include expenses for the
child’s benefit that are beyond the usual things child support covers. Examples may include a child’s unusually high
medical expenses, orthodontic care, and summer camps.
We apply each party’s relative percentage of income to the total expenses, with modification for joint or split custody
arrangements. If the child support payor pays for health insurance, day care or extraordinary expenses, then the child
support payment is adjusted to prevent double payment.
Judges have discretion to deviate from the child support Guidelines in cases where fairness requires it, for example, if
the parties’ incomes are above the Guidelines chart, or if one party artificially depressed his/her income.
Child support can be set by agreement or by court decision. Child support can be paid directly to the payee or through
the Court (sometimes including wage garnishment). If payment is through the Court, the Court will assist in enforcement;
if child support is delinquent, the Clerk of Court will bring contempt charges against the payor.
Help on child support cases can also come from a private attorney or (for parties due to receive child support) from the
County’s Child Support Enforcement (CSE) Office. Because CSE is a government agency, it has some enforcement tools that
private lawyers do not have, like intercepting tax refunds, and it has a sliding fee scale that is usually less expensive
than private attorneys. By comparison, private attorneys often have smaller caseloads and can provide more personalized
attention. Private attorneys handling other aspects of one’s family law case may be more convenient for the client.
However, when child support is the only issue, or when saving money on fees is critical, the CSE office is an excellent
alternative. Because CSE represents only payees, payors needing representation would need a private attorney.
Private attorneys usually represent both payors and payees.
CHILD CUSTODY
By Kim K. Steffan, Attorney
Copyright 2003
Q: My child is twelve now. I am separated from my spouse. Can my child choose with which parent
she wants to live?
A: No. In North Carolina, there is no “magic age” at which a child can legally decide with which parent
to live after the parents separate. Our courts are bound not by the child’s preferences, but by the child’s “best interest.”
“Best interest” includes the child’s preference and happiness, but also factors such as stability at home, appropriate discipline
and structure, nurturing, helping the child with schoolwork, and getting medical care. The N.C. Supreme Court has said that
the child’s best interest is the “polar star” of child custody decisions, and guides how that decision will be made.
One reason there is no “magic age” for custody is that children mature at different rates. Depending on the child’s age
and maturity, a judge may consider the child’s preferences by some means. For example, if the judge believes the child
is sufficiently mature to talk to the judge about his or her preferences, a judge may do that. Some children may be mature
enough at 11, and some wouldn’t be mature enough at 16 – so it depends on the individual child. Some children want to talk
to the judge, while others want to stay out of their parents’ conflict. If a judge talks to a child about custody preferences,
the judge usually prefers to do so “in chambers” in the judge’s office, rather than on the witness stand. The reason is that
this is usually more comfortable for the child. Judges usually do not appreciate a lawyer insisting on calling a child as a
witness and having the child actually testify from the witness stand, because this can be a frightening experience for the child.
Another way children (particularly younger children) may be able to have some input in the decision is in a report from a
Guardian Ad Litem or other custody evaluator. This is an independent person, usually a lawyer or a mental health professional,
appointed by the judge to do a custody evaluation or to advise the judge on particular issues. This evaluator talks to the
child, the parents, and others with useful information. The evaluator reports his or her findings to the judge. That report
may include what the child has said to the evaluator about time with each parent and preferences. Evaluators usually don’t
put children on the spot by asking them to identify with which parent they would like to live. Some older children may volunteer
that information. Younger children are often asked about what they do when they are with mom or dad, and about how things are
in each household.
Although judges care about children’s happiness, children do not always have good reasons for their preferences. For example,
if a child says she wants to live with mom because mom lets her do anything she wants, or says she wants to live with dad because
dad promised to buy her a pony, the judge won’t be persuaded by that preference.
Judges can consider the child’s preference in making custody decisions. However, regardless of the child’s age, the judge makes
the child’s overall “best interest” the “polar star” in the decision.
ALIENATION OF AFFECTION AND CRIMINAL CONVERSATION
By Kim K. Steffan, Attorney
Copyright 2003
Q: What are “alienation of affection” and “criminal conversation” claims? Are they about to be abolished in North Carolina?
A: The state House voted to abolish the claims of alienation of affection and criminal conversation in North Carolina.
The bill goes to the Senate, where its fate is uncertain at this writing. These claims are the two “heart balm” torts whose roots run deep
in North Carolina law. Some say they have outlived their usefulness.
Both claims arise from extramarital relationships. “Alienation of affection” is a claim against a third party, alleging he/she has alienated
your spouse’s love and affection from you, having caused the breakup of the marriage or prevented reconciliation. In order to prove the claim,
you must prove that a loving marriage existed before the third party interfered. This does not mean you must prove a perfect marriage, but
rather a generally happy marriage. You must prove that the third party enticed or pursued your spouse (even if the interest became reciprocal).
You must also prove damages. Damages consist of economic losses (like losing your spouse’s current and future income) and non-economic losses
(like loss of your spouse’s companionship). A jury that finds alienation of affection can award both economic and non-economic damages.
If the jury finds that the third party’s conduct was particularly outrageous or intentionally hurtful, they can also award punitive damages.
“Criminal conversation” is a claim against the third party alleging that the third party has had an intimate relationship with a married
person, namely, your spouse. It is a strict liability claim, so either the third party had such relations and is liable, or didn’t and is not
liable. The reasons or circumstances (including not knowing that your spouse was married) are not relevant, and do not create a defense.
Upon proof of the case, the jury can award damages.
Jury verdicts for heart balm plaintiffs are rare. However, there are a handful of large awards on record.
What are the pros and cons for keeping or abolishing these claims? Legislators seeking to abolish the claims say that they are out-dated,
arising from the days when society felt the need to protect women -- also the days when women were treated as second-class citizens. They
say that so many marriages fail today, many because of fault on both sides, that the claims don’t make sense. They also say that alimony
laws exist to provide for the “leaving spouse” to pay support to the “spouse left behind.” Those wishing to abolish heart balm laws believe
these claims are often brought for the purpose of extracting a better divorce or alimony settlement from the spouse.
Proponents of the heart balm claims have different views. Proponents say that marriage is still special, and that if someone starts an affair
or has a relationship with a married person, they know what they are doing and can expect consequences. They also say that alimony laws are
inadequate as a substitute, for the following reasons: (1) alimony is only awarded to financially dependent spouses, (2) alimony is often not
favored by judges for societal reasons, and (3) alimony only holds the other spouse accountable, not the third party.
The bill to abolish these claims may face more difficulty in the Senate than in the House. In the past, the bill has passed the House, only to
fail in the Senate. If it passes the Senate, the governor is expected to sign it into law.
Whatever the outcome on the bill, the debate will be interesting. As a neutral observer whose clients have been both helped and hurt by these
claims, I will be watching closely.
DIVIDING PENSIONS AFTER DIVORCE
By Kim K. Steffan, Attorney
Copyright 2003
Q: How are pension plans divided after separation or divorce?
A: The first step in dividing pension plans is to have a decision on who will take which plan, or how plan benefits will be shared.
This can happen by a separation agreement or by a court decision.
Once that is done, there must be a Qualified Domestic Relations Order (QDRO) entered by a judge to divide any plans that will be divided. QDROs must
meet requirements of federal laws that govern both tax law and pension plans.
Some pension plans, like 401(k)s, have money in an account, and the money is to be divided. QDROs in those cases instruct the plan administrator
how much money to transfer from the account, and where to transfer it. Be wary of a tax trap. In order to avoid any taxes or penalties on the money
transferred from the plan, the plan must be instructed to do a rollover from the existing account to the new owner’s own IRA account. If the funds
pass through the recipient’s hands, even if the recipient deposits them into an IRA, this triggers taxes and penalties.
Some pension plans do not allow rollovers, but only allow setting up a separate account for the non-employee spouse within the same plan, e.g., a
TIAA-CREF Traditional plan. Some plans have their own administrative charges for doing rollovers to encourage decisions to keep the new account
within the plan. Finally, plans called 403(b) plans, like many VALIC plans, may give the non-employee recipient tax benefits and more flexibility
in receiving distributions from the plan if his/her share is left within the plan in a separate account; those benefits are lost if the funds are
rolled over to an IRA.
Other pension plans do not have accounts with money in them. Instead, they are an employer’s promise to pay retirees a sum of money each month
based on a formula. If these plans are divided, the QDRO tells the plan administrator how to do the mathematical proportions so that the non-employee
receives directly the intended share. Upon the employee’s retirement, the plan sends out one monthly check to the employee and another to the
non-employee former spouse.
If a separation agreement provides for dividing a pension plan, but no QDRO is entered, the plan administrator is not obligated to make the division.
Therefore, if you are a non-employee spouse receiving part of a former spouse’s pension plan, it is critical to ensure a QDRO is done and served on the
plan administrator.
Most pension plan administrators will “pre-review” a QDRO before it is signed, to be sure they do not forsee any problems administering it. Plans have
different rules for what makes a QDRO easy to administer. This pre-review is helpful, because if the administrator sees any problems with the QDRO, it
is much easier to remedy them before the QDRO is signed. Once a judge enters a QDRO, the order should be sent to the plan administrator by certified mail.
The plan administrator will then carry out the division.
ARE “PRE-NUPS” ONLY FOR THE RICH AND FAMOUS?
By Kim K. Steffan, Attorney
Copyright 2003
Q: Are pre-nuptial agreements only for the rich and famous, or do “normal” people need them too?
A: Pre-nuptial agreements (also known as pre-marital agreements or “pre-nups” for short) are written, notarized agreements
governing property and financial rights between two people who plan to be married. While we hear about them most among celebrities, they can be
useful in some cases for the rest of us.
Pre-marital agreements may be desired when one or both parties already owns a substantial estate and wants to preserve that estate as separate property.
One example is when a party owns land or other assets with a strong connection to his/her family. Divorce law allows for preservation of separate
property to some extent, but an agreement clarifies the process. Pre-nuptial agreements may also waive alimony claims or provide for certain levels
of support. Keep in mind that, if they both agree, the couple can override the agreement when they wish to make a particular separate asset become a
marital asset. The couple can change the agreement entirely if both wish to do so, even after marriage. A pre-marital agreement need not have unfair
or drastic terms; it can include whatever the parties agree on.
Alternatively, there may be estate planning reasons to have a pre-nuptial agreement in some cases. When two people are married, estate law that otherwise
applies requires that the surviving spouse have a minimum share of the estate, even if the deceased spouse’s will does not leave anything to the surviving
spouse. That may matter in cases where both partners have sufficient assets for their own use, but one or both partners have children from previous
relationships. A partner with children (grown or not) may wish to leave her entire estate to her children, if the partners are comfortable that the
surviving spouse would not have a financial need for the assets in her estate. Even with a will, this desire cannot be met without a pre-marital agreement
(or a marital agreement if the agreement is made after marriage).
Some couples choose a pre-marital agreement because they want to be able to make conscious, clear choices about how property is held in the future.
Those couples choose pre-marital agreements including provisions that future monies put in joint accounts will be deemed marital, and those put in separate
accounts will be deemed separate.
One trap for the unwary occurs when a pre-nuptial agreement includes a waiver of marital interest in the other party’s pension plans, but no other paperwork
is done. By federal law, one can waive a marital interest in a pension plan only when one signs a waiver while one is a spouse, not before.
Pre-marital agreements are necessarily signed before the wedding, when the parties are not yet spouses. That means after the wedding, it is necessary to
sign another waiver of an interest in a pension plan. It is best if pre-marital agreements require that each spouse sign the second pension waiver within
a set time after the wedding.
Pre-marital agreements are not for everyone, but they can be useful in some circumstances. An attorney can provide advice for your particular situation.
SEPARATION AGREEMENTS
By Kim K. Steffan, Attorney
Copyright 2003
Q: What is a “legal separation”? Does there have to be a Separation Agreement to count toward the year’s separation for a divorce?
A: In North Carolina, a husband and wife must be “separated” for one year before either of them can file for a divorce. “Separated” means
out from under the same roof. It also means acting in a way that friends or family would likely think the couple was separate and not together. If the husband
and wife have been “separated” in that sense for one year, either of them can file a divorce complaint.
Having a signed Separation Agreement is what most people mean by the phrase “legally separated.” However, in North Carolina, you do not have to have a signed
Separation Agreement in order to get a divorce, nor do you have to have a signed Separation Agreement in order to start counting time toward the year of
separation.
What happens if you are separated for year and get to the divorce without ever having a signed Separation Agreement? If there are any unresolved issues
involving child custody, child support, spousal support, or division of property or debts, the judge will need to decide those issues as part of the
divorce case. Having a lawyer’s help will avoid traps for the unwary. For example, if a divorce judgment is entered without raising the issues of
property/debt division or alimony, then the parties lose the right to have the court decide those issues later. Custody and child support claims can be
brought later, even if they are not included in the divorce action.
Many people find a Separation Agreement very helpful, and choose to have one. Signing a Separation Agreement settles all of the issues (custody, support
issues, division of property/debts, documenting the date of separation, and others). When a Separation Agreement has been signed, getting the divorce is
simple and straightforward, because there are no issues other than entering the divorce judgment itself.
In some cases, it is easier to get a Separation Agreement signed early in the process before one or both of the spouses become entrenched, emotionally
detached from one another, or angry over post-separation events. On the other hand, in some cases there is too much emotion at the time of the separation,
and parties are able to think through the issues more calmly if they wait awhile before trying to reach agreement. Sometimes a trained divorce mediator
can help the parties reach agreement.
In making decisions about a Separation Agreement, a lawyer can help you by explaining the law, raising questions necessary to protect your legal rights,
and making sure you do not overlook less obvious assets like retirement plans or cash-value life insurance. Knowing what a judge would likely do with a
question may be a helpful “yardstick” by which to measure a possible settlement. Because a lawyer’s job is to advocate for his or her own client, most
lawyers are not comfortable with a request that a husband and wife use the same lawyer for a Separation Agreement. Having two lawyers involved does not
necessarily mean that the case will be contentious. Most experienced family lawyers are adaptable, being either cooperative or aggressive with the other
side, depending on what the situation requires.
WHY DO PARENTS OF GROWING CHILDREN NEED A WILL?
By Kim K. Steffan, Attorney
Copyright 2003
Q: As the parent of a growing child, why do I need a will?
A: Parents of growing children need wills, perhaps more than any other group. Why? Otherwise, your property probably will not end
up where you intend, and the Court will have to guess who should raise your children in your absence. A will is the ONLY way to assure that your children
are provided for in the way YOU want.
If you die without a will in North Carolina, the “Intestate Succession Act” controls the estate, specifying who takes what property, and how. You may be
surprised to find that the Intestate Succession Act is not very logical, and probably would not do with your property as you would.
If you are married with one minor child, you probably expect that if you died without a will, your property would go to your spouse, who would use it to
take care of himself (herself) and the child. It doesn’t work that way. Your estate would be divided between your spouse and your child, so that your
spouse would not own everything outright. Then the Clerk of Court (not the surviving parent) oversees management of the child’s share of the property.
If the surviving parent wishes to sell the property inherited by him and the child, he must go through a cumbersome and expensive procedure for the
Clerk of Court to approve the sale. The Clerk also controls how the child’s share of sale proceeds will be invested or spent. No one would wish that
on his or her family.
In some families, a spouse/parent can fully trust that if he/she died, his/her spouse would see that the children are properly cared for – financially,
emotionally and otherwise. In those cases, life would be much simpler for the family if there is a will leaving the entire estate to the surviving parent.
If you wish to leave property to minor children (e.g., if you are a single parent), you need a trustee to take legal title to the property and manage
it for the children. Having a trustee avoids having the Clerk of Court control management of the funds. If you are a single parent because of separation,
depending on the circumstances, you may choose the other parent or a third person (e.g., grandparent) to serve as trustee. You cannot make this choice
without a will.
A major concern for all parents is deciding who would raise their children in their absence. If the parents reside together, there should be a substitute
guardian named in the will in case both parents die in a common tragedy. If the parents do not reside together, the will should designate a preference
(whether it is the other parent or someone else) for guardian. While a court is not bound to appoint the guardian named in a will, that preference
usually carries a great deal of weight.
Why do people put off doing wills? Some don’t want to think about it. However, once it is done, unless the family or financial situation changes, it
is out of the way. Some think only older people need wills. As this article explains, parents of growing children may need wills more than anyone.
Some think it is expensive. While a few people need extensive work with tax expertise, many clients’ needs can be met with modest cost. Many attorneys
will discuss fees with you without obligation.
A will is a necessity and a sound investment for those who want control in providing for loved ones— especially children. A will gives its maker peace
of mind, and saves expense and difficulties for the family later on.
NEW PROPERTY REMEDIES FOR UNMARRIED COUPLES
By Kim K. Steffan, Attorney
Copyright 2010
A recent N.C. Court of Appeals case (Cury v. Mitchell) gives new options for unmarried couples to have a judge divide their property. You probably know that judges have always had
the right to divide the property of married persons when they separate. The current version of the law is called, “equitable distribution.” Because equitable distribution only applies to
married people, when an unmarried couple separates, this law is no help. Until recently, it was thought that there really weren’t any remedies for unmarried persons who separated – whoever
had title to assets owned them, and the other person was out of luck. That was true for unmarried couples of different genders or of the same gender. That didn’t seem fair or practical, since
many unmarried couples’ finances were as intertwined as those of married couples.
A recent case took a very practical approach. Judges applied an old, traditional legal rule to a new subject matter. The Court used the traditional rule of “constructive trust.”
What is a constructive trust? You probably know that a “trust” is when one person (a “trustee”) owns legal title to an asset, but they are responsible for managing the asset for the benefit of another person
(the “beneficiary”). Most commonly, someone sets up a formal, written trust by a trust agreement or in his will. A “constructive trust” is when there isn’t a formal, written trust, but the court acts
like there is because that seems like what the parties intended.
Constructive trusts have been used for a long time in business partnership cases. For example, assume two friends go into a partnership together and contribute equal amounts of money to buy a piece of land for
investment, but for convenience they title the land in just one partner’s name. If the partnership fails and the one who has title to the land claims it is just his, the Court will say, “No.” The Court will rule
that this is a “constructive trust,” where the one with legal title is treated like a trustee for the benefit of the other party. The one who contributed money and trusted his partner will be treated fairly and
equitably.
The Court of Appeals recently said this same model should apply to unmarried couples. If two unmarried people go in together to buy a residence, but for some reason title it in just one person’s name, the one who
isn’t on the deed will still be protected. In a lawsuit, the Judge will recognize an ownership interest in the one whose name is not on the deed. The same is true for any sales proceeds if the one whose name is on
the deed has sold the property before suit is filed. It appears likely that the Court will apply the same rule to other assets – vehicles and bank accounts, for example – to achieve a just and fair result.
It remains to be seen if this same theory will apply to retirement contributions one unmarried partner makes to his plan. A constructive trust result seems most likely if the other partner shows that they used her
income to live on, intentionally to free up some money to be invested in one partner’s retirement for joint benefit. In other words, both lived off her income, and both planned to live off his retirement income later
in life. It will be interesting to see what happens.
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