The Common Law Marriage Trap and 50 Cent

Hip hop star 50 Cent recently was the victim of a judicial drive-by shooting. 50 Cent has been engaged in a high profile family court action in Suffolk County, New York with his former live-in girlfriend and mother of his child.

He began a proceeding to evict her from their Dix Hills home. She then started an action in New York Supreme Court to stop the eviction. Her claim, removing all the legalese, was that they had a common law marriage.

Her attorney is a clever fellow and never actually uses the word “common law marriage” and neither did the judge, but the reality of what the judge did is clear. And if I were a betting man, I would be betting that the appellate court is going to reverse her.

Starting from the beginning, New York has abolished common law marriage. If you are not legally married, you cannot receive the protections afforded to a spouse. If a husband buys a house, the wife is automatically a co-owner regardless of whose name is on the deed. However, if a boyfriend buys a house, unless the girlfriend’s name is on the deed, she has no right to the property.

Turning to 50 Cent’s case, he bought the house in Dix Hills. The girlfriend’s name is not on the deed and she did not contribute money toward the purchase. She should have been out of luck.

But her lawyer devised a clever legal argument and swayed the court with a story of her dutiful sacrifices for 50 Cent. So, the judge accepted the attorney’s novel theories and ordered that the girlfriend can remain in the house.

The girlfriend, Shaniqua Tompkins, argued that she had a contract with 50 Cent, wherein he agreed to take care of her and to share equally in his successes. In return, Tompkins agreed to keep his home and perform other home making services for him.

The court noted that, under New York law, an oral contract that cannot be completed in a year is void. For example, an oral contract to employ someone for six months is valid. On the other hand, an oral contract to employ a particular person as long as he is alive cannot be completed in a year and is void.

After noting this law, the court then ignores it.

The court next notes the law that ”cohabitation without marriage does not give to the property and financial rights which normally attend marital relations…”

The court then noted that an agreement which is not for ”marital” type services is enforceable. However, the rule envisioned a boyfriend having the girlfriend work in his business. Turning the rule on its head, the court found that Tompkins’ housekeeping was not a ‘marital’ function but unconnected to the romantic relationship. Therefore, the judge found a contract between 50 Cent and Tompkins.

What the court did was implicitly find a common law marriage. A promise to provide support in exchange for keeping house cannot be viewed by any stretch of the imagination as anything but a ‘marital relationship.’

Next the court went on to establish a constructive trust. A constructive trust is used when someone in a legal position of trust, known as a fiduciary, causes a person to improperly transfer property. For example, X owns a piece of
property. Y, his attorney, convinces X to transfer the property to him at no cost, but on a promise that the transfer will benefit X. Once Y gets the title, he turns X out of the property. Here the court admitted that Tompkins never owned the property and never paid any money toward it. Instead, the court found that she had transferred her effort in housekeeping and therefore the court found that a constructive trust could exist for the Dix Hills house.

Again, this type of reasoning violates the law against common law marriages. If a paramour can claim an ownership interest in a house by living it in, the common law marriage can be recognized.

Whether 50 Cent will appeal it or not is up to him. I believe that this decision, by seeking a back door to resurrect common law marriages, should be reversed.

Adultery Myths And New York Divorce Law

In order to get a divorce in New York, you must prove marital fault. New York recognizes adultery as one ground to obtain a divorce. However, adultery, as a basis for divorce in New York is misunderstood. In this post, I will try to dispel some of the myths surrounding adultery.

Not a week goes by without someone asking me one of the following questions: (1) If my spouse cheated on me, do I get the house? (2) If my spouse cheated on me, do I get the kids? (3) I don’t have to pay maintenance if my spouse cheated on me, right? and (4) If my spouse cheated on me, can I have him/her arrested?

The law regarding adultery has changed with the times. A hundred years ago, the answer to the above questions would have been an unqualified “YES”. But, divorce laws in New York have changed to reflected the looser morality we inherited from the 1960s.

While we use the term “marital fault” in New York law, it has a very narrow application. It only refers to whether you can get a divorce, not what happens in the divorce. Getting a divorce is easy, the court dissolves the marriage. The hard part is resolving the issues of property and children. These issues are generally unaffected by allegations or proof of adultery.

Let’s first look at property. Under the equitable distribution law, the court is not interested in who destroyed the marriage. The court instead is looking at the length of the marriage, and the property acquired during the marriage. Generally speaking, the court will divide the property in half, regardless of who was at fault. Adultery, by itself will not adjust the scale.

But, what if the cheating spouse spent money on the paramour? That is different. Assume the cheating spouse bought the paramour jewelry. The money used was presumably marital money. That money was wasted and must be returned to the marital pot for distribution. In one case I had, the husband broke an investment plan and deposited it in the girlfriend’s bank account. The judge attached the account and brought the money back.

Child custody and visitation are more problematic because of the emotions involved. The paramour is seen as the cause of the termination of the marriage. So, it is not uncommon to for the innocent spouse to demand custody on a “morals” issue. Or the innocent spouse will demand that the children not be exposed to the evil paramour.

Until the sexual revolution of the 1960s, adultery was evidence of poor morals, and could be used to secure child custody. Now, that is simply not the case. Adultery is no longer the controlling factor in custody. Adultery can come into play if the paramour is an “inappropriate” person, such as a convicted felon or a sex offender. Adultery can also come into play if it is part of a pattern of an unstable lifestyle. For example, going out every night, leaving the children unattended, and then coming home in the early hours, coupled with adultery could be used as evidence of an unstable lifestyle.

The area of greatest conflict involves the presence of the paramour around the children. If the custodial parent is the cheater, the innocent spouse generally cannot understand why he/she can co-habitat around the children. The argument is that the environment is “morally unsafe.” “How can I teach my child what is right, when he sees a negative moral example everyday?” As I stated above, the courts don’t get into assessing morality. If the child has a separate bedroom, many judges will not issue any order prohibiting the paramour from being in the presence of the children.

However, I have had some circumstances where the court has ordered that visitation shall not occur in the presence of the paramour. Generally, this occurs in particularly nasty breakups, and the law guardian and/or the forensic psychologist believe that it is not in the interests of the children to be in the presence of the paramour. There is no hard and fast rule, but will depend on a case by case basis.

Maintenance is generally unaffected by adultery. This may seem like a harsh rule. “She/he cheats on me and I have to pay?” The problem comes from the statutory basis for maintenance. The purpose is to rehabilitate the non-working or underworking spouse into the work force. The societal goal is to create a self-sufficient person who will not be a public charge. So, the issue of adultery generally does not play into an award of maintenance.

Finally, no one goes to jail for adultery anymore. Only the military prosecutes for adultery.

Adultery and Equitable Distribution Under New York Divorce Law

Under The New York Law, Adultery by A Spouse Will Not Effect Equitable Distribution

No, you don’t get the house if s/he cheated on you.

One of the most frequent questions I get asked is: “If my spouse cheated on me, do I get the house?” To put this question in proper legalese, the question is “if my spouse committed adultery will it effect equitable distribution.”  People believe that cheating spouse (husband or wife) should pay for this misdeed. Sadly, cheating during marriage is a not uncommon. Just as sadly, the New York Divorce Courts are not really interested in the whys of a failed marriage.

The New York Divorce Courts Do Not Punish A Cheating Spouse by Altering Equitable Distribution

The first thing to keep is mind is divorce law, as opposed to criminal law, is not concerned with punishment. The court is seeking to get an equitable resolution and not punishing someone for a moral lapse. While adultery is considered a moral lapse by many religions, it is not punished in divorce.

Under New York divorce law, the courts draw a line between determining the grounds or reason for the divorce, and the division of property.

While infidelity  is emotionally harmful to the marriage, and can have an adverse impact on the children, the courts will generally not consider it as a factor in division of the marital property. Cheating, by itself will not result in you “getting the house.” Equitable distribution is not effect by cheating. The New York Divorce Courts do not take any moral position about adultery. The court is only interested in a fair distribution of property.

While the cheated on spouse may feel it is fair to get more property, the courts did not agree. The New York Divorce Courts view marriage as an economic partnership. Each party puts an economic value into the marriage. It is this economic value that the court divides with equitable distribution. Emotional hurt, such as that caused by adultery is not considered as a factor by the courts.

But, Sometimes Adultery Can Effect Equitable Distribution by The Courts

I know it sounds like I’m contradicting myself.  On one hand I just explained how adultery does not effect equitable distribution. But, I am not. I said, adultery, by itself will not effect equitable distribution.

Now, lets look at other facts of adultery which could effect equitable distribution. For example, if the cheating spouse diverted marital funds or assets to the girlfriend /boyfriend. (We divorce lawyers use the term “paramour”). The typical examples are the purchase of an apartment or of jewelry. This conduct is called “dissipation of marital assets.” Under those condition, a judge can, under New York divorce law, recover the money that the cheating spouse spend on his/her boyfriend or girlfriend. But, remember, the court is not going to give the non-cheating spouse the house as punishment. So, infidelity  is not punished, but is a factor when showing that assets have been wrongfully taken from the marriage.