Unmarried and Living Together

Oscar has a nice place in Castaic. He bought it in 2008, near the bottom of the market, so there’s about $175,000 in equity. In 2012, he started dating Mary, which transformed into what seemed to be an idyllic relationship. After a long discussion, Mary moved in with Oscar in early 2015.

During about this same time, Brett and Janet began dating. The culmination was Brett moving into Janet’s home in 2016. Oscar and Mary had a frank discussion about the implications of Mary moving in.

Mary planned on helping with expenses, such as paying a portion of the mortgage, helping with the property insurance, and sharing other common costs that naturally go with owning and maintaining a home. She’d heard stories from her friends who did the same thing and got nothing when the relationship ended. As a result of the discussion, Oscar and Mary decided the best idea was to meet with an attorney.

The meeting went well. Some difficult discussion about how Oscar wanted to protect his investment in the property, and about how Mary didn’t want to be supporting Oscar’s house with no return for her. But they got past all of those issues and signed an agreement outlining how it all was to work, including that Mary would accrue a percentage of ownership of the home based on what she contributed to its maintenance and giving her an option to buy out Oscar’s interest if he was to die. They also agreed to record a memorandum of their agreement, essentially notifying the world about what they’d decided.

By way of contrast, Brett rejected the notion of meeting with an attorney or even discussing with Janet how his moving in would or would not impact Janet’s ownership of the home. He felt bad enough that he couldn’t provide the home — no point in highlighting that deficiency. Janet was grateful that Brett didn’t want to delve into this tricky area. She was convinced that she might scare him away. She didn’t want to pit her home against Brett. So nothing was decided.

For the next five years, both couples continued their unmarried cohabitation. (Remember, California does not recognize common law marriage.) Mary and Brett helped pay for the expenses related to their respective homes. Then disaster struck both of them. Oscar was killed in a car accident. Janet caught Brett fooling around on her, so she kicked him out.

This is when their common experiences began to diverge. Mary used the agreement with Oscar to buy his percentage in the home. Oscar’s relatives weren’t thrilled with that. But the attorney they met with said that the relatives, and not Mary, would have the burden to undo the agreement, which would be tough.

Brett wasn’t as fortunate as Mary. He went to an attorney who explained to him that Brett could sue for partition of the home. That is, he files a lawsuit asserting that he has some ownership interest in the house, asking the court to: 1) decide how much, if any, interest he had; and, 2) determine how he gets paid that percentage. The downside? Brett would have the burden of proving his case. And the attorney would not take this on a contingency basis. Instead, he would be billed for every minute the attorney worked on the file. The attorney estimated that the attorneys’ fees would be at a minimum $35,000 and could go higher, with no guarantee of success. Reluctantly, Brett decided to drop it. Please understand – I am not advocating for people to live together without the benefit of marriage. Rather, if you’re going to do that, make sure to come to a written understanding with your partner about how your payments toward the support of the common home will be treated. Have that discussion now or pay a lot more money in hiring an attorney to fight it later. ©

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