To have and to hold (Title, that is): Advice for the unmarried
The key question when buying property together, according to a new book -- "Living Together: A Legal Guide for Unmarried Couples" -- seems pretty simple: Does your legal relationship match your private agreement?
But who wants to have that conversation when you are newly in love, or at least new to nesting?
No one, the book's author admitted to WalletPop."Since one of the fictions that holds relationships together is the belief that they will never break up, having the discussion that begins, 'If we break up...'? They don't want to go there," said Oakland, Calif. attorney Frederick Hertz, who has made a career of imploring people to go there. "I call it the conspiracy of ambiguity."
Love may be blind, but the law is blind to love and just about anything else not written into a contract.
Hertz offered two truelife examples from his practice, both involving unmarried couples:
Boyfriend/Girlfriend: The boyfriend holds the property title in his name alone. The girlfriend is handy -- a tile setter and so on -- and does tons of work on the house over two years. But she has trouble holding down a job and the boyfriend supports her for seven years. When they break up, the girlfriend says that, out of the house proceeds, "You owe me for those two years of work on the house." The boyfriend says, "I've already paid you. I supported you." She responds, "Thanks for supporting me, but you did that because you loved me!"
Court verdict: In favor of the boyfriend.
Lesbian couple: The title was in both names. Over the course of 15 years, one puts $500,000 more into the house than the other. They both said their agreement was, "We'll be together our whole lives and you'll catch up." When they break up, the richer one says, "Now that there's $800,000 of equity in the house, you've got the money! You can catch up." The poorer partner responds, "We were lovers. This wasn't a business deal. And I was doing more of the housework."
Court verdict: In favor of the partner who contributed less.
So is marriage the best defense -- for the traditional couple, and for the same-sex couples in the five (as of January, when New Hampshire comes online) states that allow it?
Actually, like many things in life as in relationships, it's a lot more complicated than that.
Let's break it down.
First, with respect to real estate, domestic partnerships and civil unions are just about the same contract as marriage in five states -- Washington, Oregon, California, Nevada, New Jersey -- and the nation's capital. Hertz calls them "marriage-equivalent states," where the basic rule is the same as in a marriage: If it was yours before the government-recognized union, it's all yours. If you buy it afterward, it's generally 50-50 regardless of who paid what -- and regardless of how your property title reads. (He's written another book just about same-sex couples, called "Making it Legal.")
Don't want to play those odds? Consider a prenuptial -- or pre-partnership -- agreement.
For the truly unmarrieds -- without an official marriage, civil union or domestic partnership to call their own -- whoever is on the title is assumed to be the owner and whoever is not is out of luck. If they hold title jointly, they are equal owners and what each partner may have had before they bought the home is irrelevant.
Doesn't gibe with your unwritten understanding? Get it in writing.
Of course, financial situations can change, which can make even the fairest agreement seem less equitable as time passes.
That lesson is one Hertz knows well. He and his partner bought a home in the Oakland hills 27 years ago, when Hertz was fresh out of law school -- and his partner was fresh out of a divorce, with home equity to share.
"We didn't want to keep track of the money," Hertz said. "My partner had more down payment; I had more income."
So they wrote a contract saying Hertz owned 40% of the house and his partner owned 60%. Since then, the house has appreciated nicely, as has Hertz's earning power.
"Recently I jokingly said, 'Can I buy back that 10%,' " Hertz said. "He said, 'No. It's the best deal we've ever made.' "
Some couples try to handle the whole thing informally -- everything from shaking on it to saving e-mails where they committed to some arrangement. Arm wrestling anyone?
"If there's ever a conflict, the one who loses out can make a claim, but they almost always lose those claims," Hertz said. "If your partner still likes you and is a nice person, you're probably fine. If not, you are out of the money."