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Pasternak & Fidis Reporter

October 7, 2021

The Uniform Cohabitants’ Economic Remedies Act and Cohabitation Agreements

In July 2021, at its annual meeting, the Uniform Law Commission adopted the Uniform Cohabitants’ Economic Remedies Act (UCERA). Cohabitants already have the right to enter into a written or oral contract under general contract law principles. If enacted, UCERA would create statutory recognition of these rights and would expand the bases for cohabitant property claims.

UCERA has not been adopted, or even considered, by the legislatures of Maryland, Virginia, or the District of Columbia. It seems unlikely that it ever will. However, it addresses a problem that will continue to exist when two people live together, acquire property, make promises to each other about sharing assets upon death or dissolution, or when one party believes they have done so.  Whether UCERA is ever adopted, it points up the need for cohabitants to have a written agreement that specifies their rights at the end of the relationship.

Rights of Cohabitants upon Death or Dissolution. Marital status alone creates property rights and obligations upon death or dissolution. In D.C., parties who enter into a registered  Domestic partnership (RDP) also acquire property rights by virtue of their status. By contrast, in the majority of states, including D.C., Maryland and Virginia, living together in a committed relationship does not.

Express and Implied Oral Contract and Other Legal Theories. Cohabitants may enter into a written contract governing their property rights at death or dissolution. When they have not done so, disappointed surviving or former partners have tried a variety of legal theories in pursuit of a remedy. These include express oral contract, implied contract, unjust enrichment, irrevocable gift, and implied partnership.

When cohabitating parties acquire real estate with joint title, principles of property law will be applicable. Property held by tenants in common is presumed equally owned. When one member of a couple acquires sole title to real estate, the other cohabitant who contributes money or labor to acquisition or improvement may be able to pursue a claim for reimbursement.

Cohabitants Need an Express Written Agreement. Cohabitants should have a written contract spelling out their rights. Without one, a party may be forced to defend in court a property or support claim he or she thought could be avoided by remaining unmarried. For an economically weaker party, anything less than a written contract will provide poor protection for that person’s  interest in property he or she may help to create but which is titled in the name of the other partner. Where the claimant must assert his or her claim after the death of the partner, the lack of an express, written contract creates a greater obstacle to enforcement.

Parties who plan to enter into an RDP in D.C. need a written agreement. If either party leaves the jurisdiction and moves to a state that does not recognize the parties’ legal status, and the property and support rights that flow from it, in the absence of a written contract, their remedies will be inadequate.

In sum, cohabitants who wish to reduce the risk of litigation and to protect their financial and property interests from claims upon dissolution or death, or who wish to establish their monetary rights in the fruits of shared labor, need an express written contract defining their rights and obligations.

Criteria to Create an Enforceable Cohabitation Agreement. Cohabitation contracts are governed by the same validity criteria as any other contract. It must be executed voluntarily, not under duress or as a result of fraud, by parties with legal capacity to contract, and there must be consideration. There must be agreement as to all essential terms.

Consideration is something of value given by each party. Consideration can include: agreement to share and pool income and other economic resources; domestic services; services as an unpaid employee of a business; labor in the acquisition or improvement of real estate; agreement to quit work, retire, or move to a different geographic area; agreeing to care for a party during an illness.

Financial Disclosure. Financial disclosure is not a general obligation of parties to a cohabitation agreement, as it is for a valid premarital agreement. However, for some couples, it may be a good idea to make some disclosure. Disclosure can help to establish the identity of a party’s pre-cohabitation separate assets. The weaker party may need to get disclosure in order to have a basis to negotiate the terms.

Scope and Terms. An agreement may address property rights upon the death of a partner or the dissolution of the relationship. It could address only ownership of specific property, such as a home, investment property, or a business; or, it can be broader and apply to all property. It can provide for the parties to waive all rights and claims so that a parties’ rights are determined exclusively by title.

It can include an obligation for the wealthier party to transfer assets, make lump sum payments upon dissolution, or make provisions for the weaker party in the event of death. It could provide that parties will pool their resources and create a shared estate.

Provisions for Support After Dissolution. Parties can agree to a specific amount and duration of support if the relationship ends or can waive any such claim. They could agree to go to binding arbitration to determine a future post-dissolution support claim. It is doubtful that a court in D.C., Maryland, or Virginia would hear such a claim, but this is untested.

Terms Affecting Retirement Benefits. Retirement benefits are a special class of property. Parties can provide in an agreement for their value to be counted in the event of dissolution and for a payout of cash or a trade-off of other assets to compensate for such value. Courts have no authority to order a plan administrator to pay benefits to the nonparticipant. Parties can agree that a plan participant will name a cohabitant as a survivor of a death benefit so long as the terms of the plan permit the participant to do so. These contractual rights may not be enforceable directly against the plan.

Effect of Marriage or Other Formal Legal Status on Agreement. A cohabiting couple may decide to marry or enter into an RDP in D.C. The contract could provide either that it survives so that it functions as a premarital agreement or that it is terminated upon such an event.

An unmarried couple has the right to enter into a contract governing property upon death or dissolution and providing for support, or for a waiver of any claims. Cohabitating parties who have property interests they wish to protect from partner claims upon dissolution or death, or who need protection from being divested of property to which they have a valid claim, should enter into an express, written agreement defining their rights.

October 7, 2021

COVID-19 and the Rise of Electronic Signatures

Since early 2020, fewer face-to-face transactions have been possible because of mandatory social distancing. These restrictions changed the way lawyers and clients handled contracts and other business and personal transactions. The remote work environment reduced ink-to-paper signatures and increased the use of electronic signatures for contracts. Parties to a contract use the click of a button, sign on an electronic notepad, add their signature to the end of an email, or upload a picture of their signature to software. This development has led to questions about authenticity, validity, and enforcement of contracts.

Although an oral contract can be valid, with some exceptions, most contracting parties prefer a written agreement with signatures. In the family law area, a premarital agreement must be in writing and signed… MORE >

October 7, 2021

Avoiding Probate with the Right Plan

Often, when meeting with a client to discuss their estate planning, one of the first questions is, “How can I avoid probate?” Probate can be a source of anxiety for clients who want to avoid imposing on their loved ones what they envision as a long list of cumbersome tasks after their death.

Probate is the process by which a decedent’s will is carried out and, depending on the nature of the assets involved, requires varying levels of court involvement. Typically, probate assets are those assets a decedent owned in his or her sole name that do not go to a designated beneficiary. The probate court appoints the personal representative of the decedent’s estate, and monitors payment of the decedent’s debts, compliance with mandatory notification… MORE >

July 6, 2021

Virginia Adopts the Uniform Collaborative Law Act

Virginia has joined Maryland and D.C. in passing the Uniform Collaborative Law Act (the UCLA).  The Virginia UCLA will apply to all Virginia family law Collaborative cases starting July 1, 2021.  Begun in 1990 as a newcomer to the array of Alternative Dispute Resolution options, Collaborative Law was introduced in the DMV area in 2005 and has become a popular choice for couples who prefer an out-of-court process to settle their divorce and family law issues.  Collaboratively trained family law attorneys, including those in our firm, welcome the adoption of this Act.

May 26, 2021

Lifestyle Analysis in Divorce

In some divorces, the family law attorney may have concerns about an opposing spouse who is not forthcoming about income or the existence and value of assets.  In some cases, the attorney may need to use cash flow to establish the couple’s marital standard of living.  This article addresses these issues, highlighting a book by Tracy Coenen, Lifestyle Analysis in Divorce Cases: Investigating Spending and Finding Hidden Income and Assets, Second Edition (American Bar Association 2020).

What is a Lifestyle Analysis?

Coenen defines lifestyle analysis as the “process of tabulating and analyzing the income and expenses of the parties.”  This analysis includes tracking missing documents, identifying regular and one-time family expenses, tracing cash flow, calculating gross and after-tax income and projecting future income and expenses…. MORE >

May 20, 2021

Is Your Estate Plan Consistent with the Terms of Your Premarital Agreement?

A premarital agreement addresses a couple’s rights and obligations to one another when their marriage ends by divorce or death.  A recent Virginia Circuit Court case, In re: Algabi v. Dagvadorj, et al., highlights the importance of ensuring that a decedent’s estate plan is consistent with the terms of his or her premarital agreement; or, in the case where a decedent intends to depart from the terms of his or her premarital agreement, the importance of making this intent clear in the testamentary document.  In Algabi v. Dagvadorj, the parties executed a premarital agreement in which they each waived all claims to the other’s estate at death.  After the parties were married, husband executed a will under which he arguably intended to leave a share… MORE >