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Washington Affirms Lesbian “Divorce”

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Appeals court settles property division between couple ending 10-year relationship

A Washington State appeals court has ruled that courts can settle a property division dispute between two lesbians who have ended a ten-year domestic partnership.

In an opinion announced on February 3, a three-judge panel of the state appeals court approved a decision by Yakima County Superior Court Judge Heather Van Nuys allocating assets and responsibilities between Lynn Gormley and Julia Robertson.

Gormley and Robertson were both serving in the Navy when they met and became partners in July 1988. They both held the rank of lieutenant commander, Robertson as a medical doctor and Gormley as a nurse and administrator. In 1992, they borrowed $20,000 from Gormley’s father to consolidate their debts, and began repaying the loan from a joint checking account into which they both deposited their income. In 1993, they bought a house together, but the house was put in Robinson’s name for purposes of convenience and financing. The payments on the house also came out of the joint account, as did financing for home improvements.

The trial court’s findings indicate that in civilian life about 30 percent of their joint income came from Gormley and the balance from Robertson.

In 1998, they separated and a dispute arose about how to divide up their property and loan responsibilities. Gormley ended up suing Robertson.

Robertson, who had kept the house and was no longer contributing toward paying off the loan to Gormley’s father, filed a motion to dismiss the case, and F. James Gavin, a judge hearing preliminary motions, dismissed large parts of the case, but allowed some of Gormley’s theories to go to trial before Van Nuys.

Washington courts at the same time were dealing with another case involving a male couple, Vasquez v. Hawthorne, in which a different division of the court of appeals rejected the claim that a same-sex domestic partnership could be dealt with under a Washington state law doctrine called “meretricious relationship, ” devised by the courts to deal with long-term cohabiting heterosexual couples disentangling their finances when their relationships ended. The Vasquez opinion reasoned that the doctrine was devised in the context of opposite-sex, “marital-like” relationships, and should be restricted to those, since Washington forbids same-sex marriage.

Based on the Vasquez ruling, Gavin specifically rejected the “meretricious relationship” doctrine in the Gormley v. Robertson case.

However, before the Gormley case went to trial, the state Supreme Court issued its decision on an appeal of the Vasquez case. The Supreme Court reversed the court of appeals ruling that the meretricious relationship doctrine did not apply to same-sex couples, though it did not resolve the question, stating that it was a question for “another day.” The Supreme Court noted other legal theories that could be used to address the dispute in the Vasquez case, in which one of the parties was deceased, and sent that case back to the lower courts.

Van Nuys interpreted the Supreme Court ruling to mean the issue of using the meretricious relationship doctrine in a same-sex case was once again an open question, and she determined that it was appropriate to apply it to the Gormley-Robertson dispute. Van Nuys made a division of their property and asset rights, applying the same equitable principles that would be applied in a case involving cohabiting opposite-sex parties, and Robertson appealed.

Robertson argued that the meretricious relationship theory does not apply to same-sex couples, and that, in any event, Van Nuys had made errors in her allocation of assets.

“But it is of no consequence to the cohabitating couple, same-sex or otherwise, whether they can legally marry,” wrote Kato. “Indeed, one of the key elements of a meretricious relationship is knowledge by the partners that a lawful marriage between them does not exist.”

While conceding that it was up to the legislature to decide whether same-sex couples can marry, Kato found that the meretricious relationship doctrine was a judicial innovation that arose to decide disputes involving unmarried cohabitants.

In a concurring opinion, Chief Judge Stephen Brown argued that it was not appropriate to apply the meretricious relationship doctrine to this case, but found an implied contractual relationship between Gormley and Robertson and stated that, regardless what doctrinal label one put on it, the court could essentially make a factual inquiry and impose a fair property division in order to settle the dispute.

Brown agreed with the majority that there was evidence to support the property allocation that Van Nuys made.

It is sometimes said that one of the important benefits of marriage is divorce. One of the legal benefits that comes with marriage is the possibility of judicial assistance in ending the relationship if the parties cannot agree about property division. The decision in Gormley v. Robertson suggests that such assistance could be made available to gay couples by the courts even in a state where the law does not permit same-sex marriages.

However, the decision arises within a tradition in Washington state of judicial accommodation to the reality of opposite-sex couples living together without benefit of marriage. This kind of jurisprudence is not found in many other parts of the nation where the courts are less inclined to act in such a pragmatic fashion.

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Updated 5:17 pm, July 20, 2018
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