The law protects both parties’ interests in property acquired during marriage (or domestic partnership) when divorcing. This protection extends, in Oregon, to the same extent in civil annulments, even through the result of the case is to find that the marriage was not legally a marriage. But if a couple isn’t married, property divisions during a breakup aren’t as easy to predict. There are limited protections, but without a written agreement, it’s hard to know how the courts are likely to rule.
In Oregon, if two people have an unmarried relationship (including same-sex couples), at the end of their relationship, property is divided according to their prior agreement. This agreement may be expressly stated or implied from the circumstances. The courts, however, do not always infer an agreement to share property in situations where one might expect, so it is always risky to assume that an agreement was intended from conduct – particularly if there is a dispute as to what was said at the time. In the absence of a written agreement, the courts will look to various factors including whose name is on property, whether the parties agreed orally, whether both parties contribute financially, and whether the parties claim to be married or share a name. This means that it is safer to discuss matters early in the relationship and prepare an agreement.
In Washington, the court looks to the nature of the relationship. In general, if the parties act similarly to a married couple but acknowledge that they aren’t married, the court is likely to treat property acquired during the relationship similarly to community property and divide it similarly to a divorce when the relationship ends. Important factors include whether the parties lived together continuously, the length of the relationship, the purpose of the relationship, financial entanglement, and the parties’ intent. Even before Washington legalized same-sex marriage, the courts had ruled that the same rule would apply to a same-sex couple. A written agreement will make it more likely the court will find the rule applies, and would also help settle how property would be divided.
Another wild card in an unmarried couple case arises when one person claims to be married, the other doesn’t, and the jurisdiction where they lived at the time doesn’t have a rigorous registration system. Neither Oregon nor Washington recognizes common law marriage, and not all judges will accept a common law marriage from a jurisdiction that does (such as Idaho). Countries that do not have civil marriage may raise other disputes by raising the question of whether a religious ceremony met requirements to create a marriage. If there is any dispute at the beginning, getting a license and having another ceremony in the United States may foreclose the problem. Not everyone, however, will do that. If an Oregon or Washington court finds no marriage, but one of the parties believed in good faith that they were married, the courts are likely to apply divorce rules to divide property, so there is some protection, but that is not how all states will respond.
In general, the best way to protect yourself in an unmarried relationship is to negotiate an agreement how to resolve breakups. A lawyer can help in pointing out what may need to be discussed, negotiating on your behalf, and actually preparing the agreement to ensure that it reflects what you want and protects you.