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Breaking Up is Harder to Do
Published Monday, January 16, 2017
by Paul R. Kfoury Sr. and Andrea Q. Labonte

It is not uncommon for a couple to live together for months, and often years, before officially tying the knot. And it used to be that the time spent together unmarried often did not count when it came to dividing assets, which can lead to an unequal division of the marital estate after a divorce. A new ruling issued in August states that for all couples seeking a divorce, whether same-sex or opposite sex, the court may consider premarital cohabitation when dividing property.

In its Aug. 19 opinion, written by Senior Associate Justice Gary E. Hicks, the court states, “premarital cohabitation is not unique to same-sex couples. In 2008, 6.2 million households were headed by people in cohabitating relationships … They included 565,000 same-sex couples.” The opinion goes on to state that courts may consider premarital cohabitation on “all divorce proceedings.”

This meant that in cases involving parties who lived together for years prior to a marriage but then divorced shortly after, their marriage may have been deemed “short term,” and the party that did not have many assets in his or her name was left with little or no share of the assets accumulated during the long-term relationship.

The Case
New Hampshire law provides for an equitable distribution of all marital property owned by spouses in a divorce. This generally means the court divides the assets equally. However, courts have the discretion to deviate from an equal division of property in certain circumstances, many of which are specifically enumerated in the property division statute.

These include disparity in income, property acquired by gift or inheritance, contribution or diminutions in the marital estate by one spouse, among other factors. Premarital cohabitation was not specifically listed in the statute.

In this case, Deborah Munson and Coralee Beal began dating in 1992 and started living together approximately one year later. A short time after, they began to share bank accounts, income, payment of expenses, and otherwise shared household duties. They also executed estate plans leaving their respective estates to each other, and otherwise conducted themselves as a married couple. After 15 years together, the entered into a civil union in 2008, and on Jan. 1, 2011, their civil union converted to marriage due to a change in NH law. Munson filed for divorce from Beal in March 2012.

The trial court did not specifically consider the premarital cohabitation in this case. Instead, the court determined their marriage began with their civil union in 2008 and concluded that their marriage was short-term. As such, the trial court found that an equal distribution of the parties’ assets was not equitable.

Beal received approximately 12 percent of the marital estate and appealed to the NH Supreme Court requesting that the court impose an equal division of the marital estate. While the Supreme Court did not order an equal division of the estate, it remanded the case back to the lower court for additional proceedings consistent with its order that premarital cohabitation is a factor that may be now considered in divorce proceedings. The case is still awaiting further proceedings in the lower court.

What It Means
There is a catch-all in the statute allowing the court to consider “any other factor” it deems relevant when considering division of assets, but this decision now gives NH courts clear direction that premarital cohabitation may be considered.

While the future impact on divorces is unclear, what is clear is that divorce proceedings will change. Couples that reside together for long periods of time prior to making the decision to get married, or, as in this case, could not legally get married until the law allowed them to do so, will have that period of cohabitation as a consideration when the court is dividing their assets.

As with all marriages, a properly drafted and executed premarital agreement (commonly known as a prenuptial agreement) could provide protections to couples contemplating marriage after a long period of cohabitation where they do not wish to have individual assets considered equal should they marry and then divorce. The American Civil Liberties Union of NH and the Gay & Lesbian Advocate & Defenders of Boston (GLAD) submitted an amicus brief in the case arguing that it was objectively unreasonable to characterize a 20-plus year relationship as short-term, as well as contrary to relevant principles of NH law and policy, which support the recognition of premarital cohabitation periods.

The brief also argued that denying this same-sex couple the presumptively equal distribution of marital property would violate the guarantee of equal protection. “This decision is an important step toward full equality for same-sex divorcing couples,” says Gilles Bissonnette, legal director for the ACLU of NH.

Paul R. Kfoury Sr. and Andrea Q. Labonte are attorneys at Shaheen & Gordon, PA, a full-service law firm with offices in Concord, Dover and Manchester, NH, and Saco, Maine. They were the legal counsel representing Coralee Beal in the NH Supreme Court case. For more information, visit shaheengordon.com.

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