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Duke Law > Duke Law Scholarship Repository > Journals > DJGLP > Vol. 1 > No. 1 (1994)

 

Authors

Hara Jacobs

Abstract

In the past twenty years, the number of couples living together on a long-term basis without marrying has dramatically increased. 1 With the increase in domestic partnerships 2 has come new litigation in which one scorned domestic partner sues the other, claiming a right to property procured during the relationship. Often, one partner brought more present or future financial resources to the relationship than the other. The wealthier partner may have placed some or all of the property acquired during the relationship in her name only for a variety of seemingly innocuous reasons (e.g., business expertise, tax benefits, facilitation of financial management); nonetheless, the result is that one partner has title to the assets while the other partner has nothing. In fact, such a situation is similar to marriage, where one spouse typically enters the union with more assets, business expertise, or earning potential than the other. As this Note argues, the key difference between spouses and domestic partners, however, is that marital dissolution statutes protect spouses. Domestic partners must rely on scattered judicial decisions which often do not agree on the proper theory a domestic partner should advance in order to state a claim. The problems a domestic partner faces are compounded when the plaintiff making the property claim is gay or lesbian. Homosexuals are not a protected class, which means that they can be discriminated against as long as there is a rational basis for the statutory distinction and a legitimate government interest. 3

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