Darlene and Dave have been dating for a decade and cohabiting for most of that time. They purchased a home a few years ago; title to the home was under Dave’s name only due to Darlene’s credit history. Dave assured Darlene that they “owned the home together,” and Darlene has been contributing to the household expenses. Lately, the couple’s relationship has deteriorated. Darlene is concerned regarding what will happen to her contributions to the house if the couple should break up. Will she be protected?
For unmarried couples (particularly those who are cohabiting or those who own property together), protecting each party’s property and financial interests should be paramount. There are a number of options, which are explained below.
First, the parties may enter into an agreement regarding issues of property and finances. In one case, the Supreme Judicial Court enforced such an agreement between an unmarried couple who had been cohabiting for many years.1 The Court noted that “unmarried cohabitants may lawfully contract concerning property, financial, and other matters relevant to their relationship. Such a contract is subject to the rules of contract law and is valid even if expressly made in contemplation of a common living arrangement, except to the extent that sexual services constitute the only, or dominant, consideration for the agreement, or that enforcement should be denied on some other public policy ground.” 2
In the case of real or personal property which is owned jointly by the parties, the Probate and Family Court may order partition, making an equitable assignment of the property, its title, shares, and rights. The Court may also order an accounting.
Under some circumstances, the Court might order a constructive trust, which is an equitable remedy by which one party who has title to property has a duty to transfer title (or some rights) to another person who has been wronged. In one case, the Supreme Judicial Court considered real estate which was held solely by a man who had promised his live-in companion that they would own the property together. 3 “It would be unjust not to impose a constructive trust in this case,” the Court explained. “The plaintiff gave up her career as a flight attendant and undertook to maintain a home for the defendant while he advanced his career. She contributed her earnings and services to the home. The defendant’s assurances to the plaintiff that they would own the property together (although title would be taken only in his name), his later promises to transfer title to joint ownership, and the plaintiff’s reasonable reliance on those promises made by one in whom she reasonably placed special confidence call for the imposition of a constructive trust in the plaintiff’s favor[.]” 4
The parties may, of course, also establish an express trust regarding property they own. Any such trust must be in writing and comport with all requirements for a valid trust in Massachusetts.
What if the former partner has retained some property, or money, to which a party feels he or she is entitled? There are some potential claims that may arise here. Under some circumstances, a party may recover from a former partner under the theory of quantum meruit, claiming that the former partner has been unjustly enriched. If there is personal property which is wrongfully detained by a former partner, a party may also file an action for replevin, which would seek the return of that property.5
If you have any questions about domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.