A non-written agreement for cohabitants to share retirement benefits can be enforceable under a breach of contract claim, but will not support claims to impose a constructive trust, or for unjust enrichment or an accounting. Such was the holding of the Appellate Division, Second Department, in its November 13, 2013 decision in Dee v. Rakower.

In the majority opinion written by Justice Leonard B. Austin, the appellate court relied heavily on the facts as pleaded in the complaint. The parties had lived together in a committed, same-sex relationship for nearly 18 years. Two children were born of this relationship; each party being the biological parent of one child, legally adopted by the other.

After the relationship ended in 2007 (before the passage of New York’s Marriage Equality Act [see, Domestic Relations Law §§ 10-a, 10-b]), Ms. Dee commenced this action seeking to enforce the alleged oral “joint venture/partnership” agreement. Under that agreement, Ms. Dee was to share in assets, including Ms. Rakower’s retirement contributions and earnings, in exchange for Ms. Dee leaving her full-time job to care for the parties’ children.

Before they had children, each party was employed full-time, earning a salary and retirement benefits. The parties pooled their respective salaries to meet their shared expenses. The parties purchased a house as joint tenants with rights of survivorship.

After the parties’ first child was born, the parties agreed, it was alleged, that given the cost of child care, Ms. Dee would eschew her full-time employment and work part-time so that she could be home with the children and perform other non-financial services for the benefit of the family and for the parties’ partnership and/or joint venture while Ms Rakower would continue to work full-time. Ms. Dee alleged that her decision to leave her full-time employment was based upon the parties’ specific agreement that Ms. Dee would be entitled to one half of Ms. Rakower’s retirement contributions and earnings for the period.

Ms. Rakower moved to dismiss Ms. Dee’s complaint. Kings County Supreme Court Justice Yvonne Lewis granted that motion, determining that the facts did not support causes of action for breach of contract, to impose a constructive trust, for unjust enrichment or for an accounting.


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The same-sex spouse of an artificially-inseminated biological mother is entitled to seek custody and visitation of “their” child in the the parents’ divorce action. Such was the holding of the Appellate Division, Second Department, in its November 6, 2013 decision of in Counihan v. Bishop.

In May 2009, Ms. Counihan and Ms. Bishop traveled to Connecticut to be married. They then returned to live in their home in New York. Subsequently, they decided to have a child. Ms. Bishop was artificially inseminated, and, in September 2010, Ms. Bishop gave birth to a child.

Ms. Counihan was listed as the second mother on the child’s birth certificate. The child’s last name is the hyphenated last names of Ms. Counihan and Ms. Bishop. In 2012, the parties separated, and Ms. Bishop and the child lived apart from Ms. Counihan for several months. However, Ms. Counihan continued to see the child a few times per week, which included overnight visits. The parties briefly lived with each other again at the end of 2012, but their attempt to reconcile failed, and Ms. Bishop again moved with the child to another residence.

In January 2013, Ms. Counihan commenced this action for a divorce and ancillary relief. She sought custody of the child, or in the alternative, visitation. Ms. Bishop cross-moved, inter alia, for sole custody of the child.

In the order appealed from, Suffolk County Supreme Court Justice John C. Bivona determined that Ms. Counihan lacked standing to seek custody or visitation because she was not the child’s biological or adoptive parent. Without a hearing, Justice Bivona had denied Ms. Counihan’s motion and granted Ms. Bishop’s cross-motion for sole custody.


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