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As more couples live together without the bond of marriage,
the courts struggle to deal with the consequences of a break up.
Although the emotional realities of these separating couples often
mirror those going through a divorce, and custody rules normally
are the same regardless of the marriage license, the court has
adopted a separate test for dividing the property of unmarried
couples.
On October 19, 2001, the Alaska Supreme Court issued its most
recent analysis of this issue. In Tolan v. Kimball, Case No. 5490,
the Court reviewed a relationship which began in 1989. Property
was purchased with title in the name of Ms. Tolan only in 1990,
and the unmarried couple resided there until 1997. During that
time, the property value increased by $102,000. There were disputes
by the parties about how funds were used to pay for certain expenses.
The Court affirmed the superior court's finding that the parties
had made "an informal, express agreement under which Tolan
considered [Kimball's] contributions of cash and labor as an "investment'
in the house equal to one-half its value."
Citing Wood v. Collins, 812 P. 2d 951 (Alaska 1991), the Court
reaffirmed Alaska's analysis, taken originally from a prior Oregon
ruling, holding that "courts, when dealing with the property
disputes of a man and a woman who have been living together in
a nonmarital domestic relationship, should distribute the property
based upon the express or implied intent of those parties."
The Court rejected a rule that title or possession equals ownership,
but held that an express refusal to add an unmarried cohabitant's
name to a title could be an indicator of intent not to share an
interest of the property. The Court noted the unfairness of a
rule, which held that a party who has title, or in some instances
has possession, will enjoy the rights of ownership of the property
concerned, as this tends to operate either purely by accident
or perhaps "by reason of the cunning, anticipatory designs
of just one of the parties." The court rejected a statute
of frauds argument by Tolan, stating that this is a defense only
to a contract cause of action, not to an analysis under Wood.
The line of cases in these matters makes it clear that the unmarried
owner of real property should normally take steps in advance in
order to protect his or her interests. Simply relying on the name
in which property is titled may not be enough if a superior court
later determines a different intent on the part of the parties.
Steven Pradell is an Anchorage attorney with a practice emphasizing
family law, including divorce, custody, child support and adoption.
©2001 by Steven Pradell. This article is not intended to
provide legal advice and should not be relied on for that purpose.
The law office of Pradell and Associates provides low cost legal
consultations. A helpful staff provides prompt, courteous services
to meet your legal needs. Give Pradell and Associates a call today,
at (907) 279-4529-- (279-4LAW).