Thursday, May 19, 2005

Judicial Invention
- Diluting the Meaning of Marriage

Have you ever heard of a concept called “meretricious relationship”?

Well, don’t look it up in the dictionary, because you are likely to find a definition for “meretricious” like this:

1. Of or pertaining to prostitutes; having to do with prostitutes.
2. Alluring by vulgar or flashy display; gaudily and deceitfully ornamental; tawdry; as, "meretricious dress."
3. Based on pretense or insincerity; as, "a meretricious argument."
Strangely enough (but perhaps not surprisingly, given the institution we are talking about), a couple of decades ago the Washington State Supreme Court used the word “meretricious” to define an entirely new type of relationship over which the state can exert its power.

For historical reasons, Washington State does not have common law marriage. Common law marriage generally refers to the legal status of a couple (heterosexual presumably, unless you live in San Francisco) that has co-habited for an extended period (not necessarily seven years, as conventional wisdom would have it) and has presented themselves to their community as “married” even though they are not officially and legally married. The historical roots of common law marriage go back several centuries in England, when it wasn’t always possible for a couple to have access to an official ordained with the power to declare them married. In that age, before modern transportation, it was a practical solution to a straightforward problem.

Today, in the US, the vast majority of states do not recognize common law marriage. In most states, such a concept, whether it is called “common law marriage” or “meretricious relationship” cannot exist without an explicitly passed law by the state’s legislature. However, two state judicial systems, in fits of judicial activism, decided to create a concept entirely on their own. Unfortunately, Washington is one of those states (Oregon is the other). Yes, the courts have created an intractable problem for a practical solution in our modern world.

It is often tempting for couples to live together before marriage, or even if they never intend to get married. Eventually, most people find that having roommates is untenable or downright disruptive – most of us have our roommate nightmare stories, many more than one. But, because the cost of living in cities such as Seattle is so exorbitant, many unmarried people in their twenties, thirties, or even older, find that cohabiting with a girlfriend or a boyfriend is a pragmatic solution to a cost-of-living problem.

Think twice before you do it, though, because cohabition is exactly what meretricious is designed to cover. If you are in a relationship that a court finds to be “meretricious,” you may find yourself being subjected to community property laws created for the legal divorce of legal marriages. So, after cohabiting with a girlfriend or boyfriend, and accumulating some assets you consider your own, and later breaking up, you are one court filing away from having your former significant other taking you before a judge to get half of what you have worked hard to save.

Ironically, under the nebulous definition of “meretricious relationship” that has come out of Washington State’s Supreme Court, many divorce lawyers contend that you increase your chances of having your period of co-habitation deemed meretricious if you eventually get married to your live-in. If you eventually get divorced, you are likely to end up in a divorce court squabbling not only over assets acquired during marriage, but over those acquired prior to marriage as well.

Of course, this does not follow logically. If a couple gets married, they clearly are making a deliberate change from a non-married relationship to a married relationship. A bright line would seem to exist between “before” and “after” marriage. After all, if a couple does not deem there to be a difference between co-habiting while unmarried, and doing so after being legally married, why would they bother to get married? A statement is made by the very act of marriage that makes it natural to assume that, well, you weren’t married before you got married!

But, don’t try to find the logic in this. We are talking about the State of Washington, after all, where feelings take precedence over logic. This can be a huge mess for everyone involved, of course, except the divorce industry. Divorce lawyers routinely encourage claims of meretricious relationships in order to drive up the fees they get from the ensuing legal fight.

This problem has entirely resulted from the sloppy judicial activism of Washington State’s Supreme Court. Whether there should or should not be such a concept is beside the point. The problem is that cohabiting people do not have a clear law that came out of the legislature on which they can make decisions. Most people are hit by surprise with claims of a “meretricious relationship.” This is because most people do not read the obscure case law that comes out of a state’s Supreme Court. And, even if you do, the case law on the matter is limited because, after being depleted of financial resources by a contentious divorce case, so few people can afford to appeal a divorce court’s decision. What case law exists is all over the place (such as this compared to this).

So, what’s the solution? If you want to live with her, you could put together a “co-habitation agreement,” but the relevance of such an agreement in a family court, should you find yourself there, is not clear. The best solution is simply to bear the expense on your own and not live with her, even if that means you, or both of you, must live in a shack(s). If you are a guy, when you add the risk of landing in a divorce court after your break-up (even though you were never married!), to the risk of a false accusation of domestic violence (which happens more than you probably think), you are playing Russian roulette with your economic as well as physical liberty.

One final thought: With the nebulas status of “meretricious relationship,” could you imagine the havoc that would be wreaked if gay marriage were allowed in the state? You would then have to worry about the possibility of every same-sex roommate you ever had hauling you into court, claiming a sexual and “meretricious relationship,” and subjecting you to community property laws! I have never heard this nightmarish scenario mentioned in the debate over same sex marriages, but this would likely be the most egregious result. And, the Washington State Supreme Court is heading in just that direction.

Thus, from a practical standpoint, the concept of “meretricious relationship” should be eliminated by the courts. If not by the courts, then by the legislature. In the meantime, tone down the romance, drop her off at her place, and sleep in your own bed.

Ah, Seattle is such a lonely place for so many singles.

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