As recently as a decade ago, many clubs defined “family” as a mom, a dad and their children. A club member was entitled to extend use privileges to his “family.”
Today, data shows that families come in all shapes and sizes: single parents, blended families, significant others who live together or don’t live together, registered domestic partners. The list goes on. In 1980, the majority of U.S. children lived with two parents in their first marriage. Today, there is not a single dominate family form, according to research.
So, how should clubs evolve in light of this? Club Benchmarking data shows that a small majority of clubs (in their vast databank) extend privileges (not ownership or membership) to a member’s significant other. Of clubs responding, more than a quarter have no formal significant other policies.
If your club has not fully evolved its documents and processes into a specific definition of “family” that works for your club, then you should consider applicable state laws and your current club documents to determine what options are available, how you need to update your documents, and how you need to update your operations. This article provides an overview of all of those issues and makes some suggestions the club could consider going forward.
State Laws
The club should first consider what state laws are applicable to its circumstances. For example, California and Hawaii have “registered domestic partner” types of laws that require businesses to treat couples who have registered together as domestic partners (as opposed to becoming legally married) equally to how they treat married couples. Some state laws have been subsequently impacted by the Supreme Court Decision in Obergefell v. Hodges, which in 2015 held that the 14th Amendment requires states to license marriage between same sex couples and to recognize same sex marriages from other states. Therefore, it is important to understand the applicable laws in your state so that you address significant others and registered domestic partners in a way that does not violate state or federal law.
In addition, if your club is actually a property owners association, or is tied to a property owners association, or has “mandatory membership” within a community, there may be issues related to who holds title to the home or home lot in the community that impact the options available and requirements that impact the club. Be sure that any changes to policies or documents are consistent with the property association documents and/or the mandatory membership documents.
Club Documents
As in all cases, it is very important for a club to follow its documents or change its documents. In the area of significant others, one issue I see regularly is that the club changes its operations without changing its documents. For example, a club’s documents may define the “member” as a single individual and say that only the member may serve. The club then decides to allow “spouses” to serve on the board or on committees and then expands those privileges to significant others. The club has gone way beyond what its documents allow. Similarly, a club may extend use privileges to “the member’s spouse” but be silent on every other form of “family.”
It is important for the club to understand what its documents currently allow and require, so that the club is in compliance with those documents, and then the club should determine what it would like its policy to be. Once it has a clear plan, the club can modify all documents to be consistent with that intended policy.
Determine the Club’s Policy
First, the club should consider what it wants its policy to be generally. For example, a club might say “We are a club that provides facilities for our members and their family. To us a family means __________.” The club should then ensure that the definition of “family” complies with laws as discussed above. You could say there is one individual who is the member, and his legal spouse or registered domestic partner will have use privileges as his “family”. You might allow as a “family” two unmarried adults living together as a family unit (and their children) but not allow those two if they do not live as a family or not allow three unmarried adults who collectively live as a “couple” to be a family. You could not permit two opposite sex partners but decline two same sex partners. So, you have some latitude to decide what type of club you are, but you need to be careful about where you draw certain lines.
Finally, the club needs a process to evaluate and document the elements of what a family is. For example, for a member who is unmarried to add a “significant other” onto their membership, what elements needs to be present? Must they live together? Must they share title to a home lot in the community? Would you allow a single member to designate any other unmarried individual as their “significant other”, so long as they cannot change that significant other more regularly than every two years? Is it enough if the member represents that they are in a “personal couple relationship” with the other individual, regardless of whether they live together? If you allow any unmarried member to add another unmarried person to their membership, you might find that the second adult is actually a friend who lives down the road and between the two adults they have dozens of kids and grandkids.
It is important here that the evaluation and required factors not be made on a case by case basis. That can open the club to claims of discrimination. This is a gating issue for the club, so it should think carefully at this step.
Next, the club should determine what privileges it wants to extend to the significant other. Do you generally want the “significant other” to be treated as a “spouse” so that whatever the spouse may do (use the club, serve on committees, etc.) the significant other may do? If you adopt such a broad definition, are you also intending that the member could transfer their membership to the significant other as they possibly could to the spouse under your documents? What about transfer on death? Possible you are only extending “use privileges” and not the other privileges a spouse may have. You should think carefully through exactly what privileges are being extended.
Special Circumstances
As you determine the overall policies, consider what happens when relationships end. Statistically, this will happen! For significant others, the documentation should clearly state the limited privileges afforded to a significant other and clearly explains what rights they do not have.
What about divorcing members? Will you allow a court divorce decree to tell the club which spouse is now the “member” or is the club set up so that one is the member and one is the spouse so the membership can only be awarded to the “member spouse”? Do you have any rules or policies that address the post-divorce? May the former spouse become a member? In an amicable divorce, would you allow the former spouse to continue to use the club with the children (even as the children’s guest) and how do you handle ex-spouses who are not amicable? This is a bit beyond the “significant other” issue, but divorcing members often will add a significant other in the future – it might help to have the ex-spouse situation under control.
Appropriate Paperwork
Finally, the club should adopt appropriate paper work. The significant other and the member should sign documentation that clarifies all the privileges and responsibilities. For example, the member is responsible for all of the significant other’s charges, including for their guests. The member can terminate the significant other’s use privileges at any time. The significant other has no right to the member’s refund after resignation. If you document the situation clearly, you will not be drawn into the pseudo-divorce (with no judge to make a binding order) when the relationship ends.
Robyn Nordin Stowell is a partner in the law firm of Sherman & Howard L.L.C. in Scottsdale, Arizona. Robyn may be reached at (480) 624-2736 or by email at [email protected]. This article is for informational purposes and is not legal advice.