Until recently, two people “living together” or cohabitating had no legal relationship and thus no claim on each other’s property or assets. When the relationship terminated, property and income belonged to the owner. Any rights and duties that did exist between the couple were purely self-imposed. The status of the couple’s relationship was inconsequential to any legal dispute that might arise.
In 1976, the California courts recognized a cause of action one partner might have against another based on an implied agreement or understanding while the two were cohabitating. As a result of famous “palimony” cases tried in California, the concept of living together began to have legal consequences. Rights that once only a spouse had, such as money owed for support to one person by another after the relationship dissolved, are now commonly considered in relationships were no marriage existed.
Unmarried people living together have no rights to the other person’s property unless they have entered into a cohabitation agreement, which can be either written or implied. The built-in protections that a spouse has as a married person do not exist when two people live together. The fact that two people are living together or cohabitating is irrelevant to property rights between the two. The obligation one person has to another is strictly a contract question with no consideration of their cohabitation arrangement.
For example, the length of time the parties lived together is of no consequence to the amount of support, if any, that is awarded after the relationship terminates. The amount awarded depends on the agreement that existed between the couple. On the other hand, the length of a marriage is a determining factor is awarding support and dividing property. The relevant question in cohabitation arrangements is whether the two people had an agreement to divide property, own assets together, or support one another. A claim based on that agreement is known as a Marvin claim (based on a 1976 lawsuit involving actor Lee Marvin).
SIDEBAR: The judgment your ex-partner owes on a Marvin claim can be discharged if he or she files bankruptcy. However, awards for spousal support are not dischargeable and must be paid.
TIP: Only spousal support payments are tax deductible.
My partner and I were never officially married but we have always acted and considered ourselves married. If we break up, do I have to file a Marvin claim to get my half of our property?
It depends. In states where common law marriages are recognized, you are treated as a spouse. However, if you live in a state that does not recognize common law marriages, you must file a Marvin claim to obtain your share of the property.
SIDEBAR: A common law marriage is a relationship where two people hold themselves out to the public as a married couple. Common law marriages are discussed below.
Why should my partner and I have a cohabitation agreement?
A cohabitation agreement protects your interests by clearly spelling out your obligations to one another. If one of you is supporting the other person (for example, paying bills and mortgage, buying food, clothing and vehicles), the agreement can provide that support will not continue if the relationship ends.
SIDEBAR: If a death occurs without a valid will, your partner inherits nothing.
TIP: If you want to be responsible for decisions about your partner’s healthcare if he or she becomes incapacitated, you must have a durable power of attorney for health care.
Do we need a lawyer to draft the cohabitation agreement?
No. However, to avoid messy financial entanglements, it is advisable that an attorney draft the cohabitation agreement.
TIP: Each person should consult their own attorney.
What should the cohabitation agreement include?
The agreement needs to cover how you and your partner wish to be treated during the relationship and when it terminates. Some points to include are:
- directions for distribution of property (what and to whom) if one or both of the partner’s die;
- provisions that one partner is supporting the other (if that is the case) and a listing of specific elements of support (e.g., housing, food, vehicle, amount of cash per month);
- provisions that neither partner has the obligation to support the other (if that is the case) and that all expenses are shared equally;
- specification of the expenses for which each partner is responsible ;
- specification of the debts for which each partner is responsible;
- specification of whether a joint bank account will exist and the amount of contribution each partner will make;
- waiver of any claims of support after the relationship is terminated;
- amount and number of payments, if any, to be made by one partner to the other after relationship is terminated;
- directions for the disposition of jointly owned property and distribution of the proceeds;
- provisions revoking the agreement if cohabitation is ended on mutual agreement;
- provisions voiding the agreement should one partner be unfaithful (or other applicable event); and
- recitation that each partner consulted their own attorney.
What do we leave out of the agreement?
The cohabitation agreement should never refer to a promise to divorce or provide sexual favors.
TIP: As a matter of public policy, agreements, written or oral, are not enforceable where one party promises to divorce, unless the marriage is utterly unredeemable.
We do not have a written cohabitation agreement, but I have quit my job because my partner promised to always support me. Can I hold my partner to the promise?
Yes; however the matter will most likely have to be litigated in court. In order to enforce your partner’s promise, the jury or judge must believe that the two of you had a clear understanding regarding support.
If I left my partner because she was unfaithful, is my promise to support her still enforceable?
No. You can argue that your ex-partner breached the cohabitation agreement. As with any contract, her breach may extinguish any duties you had towards her.
Is my ex-girlfriend entitled to monthly support while we are litigating her Marvin claim against me?
No. She is suing you based on a contract and she has no right to support or any type of recovery on her contract claim until the matter is decided.
Can an ex-partner sue for support and property if the relationship was a same-sex one?
Yes. Gender is irrelevant in determining if a cohabitation agreement exists between two unmarried persons.
My partner and I were married for less than a year after living together for a decade. Can I still make a claim for support based on a cohabitation agreement that we had while living together?
Yes. Marriage does not extinguish your Marvin claim.
TIP: The Marvin claim is a separate lawsuit from the divorce proceedings. Once the lawsuit is filed, it can then be consolidated with the divorce action.
I was awarded a sum of money after I sued my ex-partner for support. I’ve since lost may job. Can the amount of the award be increased?
No. Unlike spousal support judgments, a judgment on a Marvin claim cannot be modified or changed.
How is the cohabitation agreement enforced?
The agreement is generally enforced through litigation. The Marvin claim is either settled or the parties go to trial. Once a judgment has been entered, it can be enforced through several means, including contempt of court, if a party disobeys the court’s orders.
SIDEBAR: The agreement does not have to be written or express to be enforceable. Instead, if one of the partners in a cohabitation arrangement can prove that an implied partnership (i.e., contract) existed, that party may be owed compensation.
TIP: Suits must be brought within the statute of limitations for contracts in the state in which you reside. For example, in California, Marvin claims must be brought within 4 years after the relationship ends where there is a written agreement. If the agreement is oral or implied, there is a 2-year statute of limitations.
SIDEBAR: Cohabitation is not a prerequisite to the finding of an implied agreement between unmarried persons concerning their property.
What is “palimony”?
Palimony is the term for monetary support paid to an ex-partner through a Marvin claim. Your right to palimony is never automatic. Unlike alimony, which is a right granted on the basis of your status as a married person, palimony is based on an agreement or understanding between partners. If no agreement exists, palimony is not a remedy.