Woman Can Sue Former Same Sex Partner For Breach Of Contract

December 2, 2013
By Clifford Petroske

Just as not every marriage ends in divorce, not every relationship ends in marriage.  For those unrestrained by a state contract but left empty-handed, there is some consolation if an alternative agreement was made.  As the recent decision of the Appellate Division of the New York State Supreme Court in Dee v. Rakower (11/13/13) shows, even an oral contract can suffice to entitle a cohabitant to share in the value of retirement benefits earned during the relationship. 

In the Dee case, the parties cohabitated as an unmarried same-sex couple for 18 years and had two children, each adopting a child born to the other.

Because they were unmarried, plaintiff Dee, who had stayed home to raise their children and had no retirement benefits, could not proceed under the equitable distribution law (which serves to grant the non-titled spouse an interest in the other’s assets) to claim a portion of her former partner’s pension.

Fortunately, she was not without a remedy.  When they broke up, Dee sued for breach of contract, alleging that she had quit her full time job that offered a retirement plan when the parties agreed that she would work part time and stay home with their children.  She further alleged that defendant Rakower agreed to contribute financially, supporting the household and sharing the retirement contributions she accumulated during the time that the plaintiff lacked a retirement plan of her own.

Despite the favorable decision from the Appellate Division, the Dee case does not yet represent a victory for the plaintiff, since the appellate ruling was not a final order.  It reversed the lower court’s dismissal order, and sent the case back down to the trial court with instructions for it to go to trial.  Of course, Dee could yet lose at trial, which is a significant risk, since the alleged agreement is an oral agreement, the proof of which will largely depend on the parties’ credibility at trial.

But regardless of the ultimate outcome for plaintiff Dee, the case represents a huge victory for all unmarried individuals who dedicate their lives to raising a family.  Straight or gay, a couple that embarks upon an economic partnership where one of the partners promises a benefit to the other (i.e. raising his/her children) and/or, based on a promise, suffers some detriment (i.e., quits a job with a pension) has entered into a legally binding contract even if it was never written down.  It should go without saying that a written contract is preferred, but at least there is some remedy in cases without one.  This is particularly important for gay and lesbian couples who now, in the wake of the Marriage Equality Act, are able to get married, but who may have lived together for many years with nothing more than a promise to “share and share alike.”  At least now those years are not lost, and promises made can be enforced.