friendly1 said:
I seen in a previous post that palimony is recognized in NJ. Do you know if it is in Ohio? Where can I research this a bit more? I'm not trying to be greedy, but me and me ex had an agreement at the time we were living together to both pay for all expenses. But of course, everything was in my name because of his credit background and his ex-wife. So now I am stuck with payments I really can't afford and just getting out of them would ruin my good credit. I've considered myself "stuck with them", but if I can get some help, why not try!
My response:
Because this is a fairly common question - - even if a person posting to these Boards doesn't actually use the term "palimony" on these Boards - - perhaps an explanation of what palimony is and is not, is in order at this time. All of the States recognize palimony - but, it's not a "Family Law" matter - it's a "Contract" matter. So, I'm writing the following for you to give you a better understanding of Palimony, even if it is from a California perspective, to allow you to better compare your actual situation to that of accepted palimony "rules of engagement."
It all started in California with the relationship between now deceased actor, Lee Marvin, and his live-in lover, Michelle Triola, back in the late '70's. Now, all States recognize this cause of action called palimony - - they may not call it palimony; e.g., they may simply call it "breach of contract" - - but, in relationship situations, it's palimony nonetheless. Few California family law cases have been as widely discussed – and as widely misunderstood – as Marvin v. Marvin[2]. Marvin was initially perceived as creating a new area of law and a bill of rights for cohabitors. It did neither. A closer analysis of Marvin and its progeny demonstrate increasing judicial conservatism regarding the rights and remedies in this area of law.
Therefore, it is important to note the procedural context in which the Marvin case arose. Michelle Triola (who changed her name to Michelle Marvin shortly before filing her Complaint) sued Lee Marvin on a contract theory. She alleged that she gave up a lucrative career as a singer and entertainer to live with the Defendant and provide domestic services to him and that in return Defendant agreed to share all assets accumulated during the course of their relationship with her and to support her for the rest of her life. At the time of trial, the court granted Defendant’s motion for judgment on the pleadings. The procedural context of the case was therefore one based on pleadings, not evidence. The California Supreme Court assumed that Plaintiff’s allegations were true[3].
The California Supreme Court discussed a variety of approaches and theories, several of which will be discussed in this paper. The Court not only permitted recovery for specific causes of action but also added broad dicta that the specified causes of action were not exclusive and that additional equitable remedies may be appropriate in cases in which existing remedies were inadequate.[4] However, equally important is what the California Supreme Court did not permit.
THE MARVIN HOLDING
The holding of the Marvin case is very narrow. The Court held that cohabiting adults have the same right to contract as other people[5] and that such contracts will be enforced to the extent that they do not explicitly rely on meretricious sexual services[6]. The Marvin court specifically permitted recovery express contracts, implied in law contracts, implied in fact contracts, It further permitted recovery in quantum meruit.
Broadly read, Marvin is therefore a traditional contract case. As such, the pleading and proof of a palimony case lies in contract alone, and is subject to traditional contract defenses. These contract defenses place potential roadblocks in the path of every palimony plaintiff and most palimony litigation centers on the proof of a contract and the traditional defenses to a contract. All that the Marvin decision did for palimony plaintiffs was to make it clear that cohabitation coupled with a sexual relationship did not bar the enforcement of an otherwise enforceable contract.
II
COMMON LAW MARRIAGE IN CALIFORNIA
California has not recognized common law marriage for 100 years.[7] Contrary to popular perspective, the Marvin court retained the bright line test between those who are married and those who are not.[8]
Plaintiff had urged the application of the California’s Family Law Act[9] to cohabitants.[10] The Marvin court traced the legislative history of the Family Law Act and concluded that “[n]o language in the Family Law Act addresses the property rights of nonmarital partners, and nothing in the legislative history of the act suggests that the Legislature considered that subject.”[11] The California Supreme Court refused to extend the Family Law Act to nonmarital contracts; this refusal was the principal limitation in the Marvin decision. As a result, all palimony litigation in California is based on contract, not status, and must be filed and heard as a regular civil action, not as a family law proceeding. This limitation has created both substantive and procedural issues that frequently arise in palimony litigation.
The fact that California requires marriages performed in California to be solemnized formally does not preclude it from recognizing common law marriages that are valid where contracted.[12] The choice of law rule in California is that a common law marriage contracted in a jurisdiction permitting common law marriages must be valid under the law of that jurisdiction.[13]
An essential tool in every California palimony lawyer’s tool kit should be an awareness of those states which recognize common law marriage.[14] It is often far easier to prove that a common law marriage was created under the law of a foreign jurisdiction than it is to prove an enforceable contract under California law.
III
PSEUDO MARRIAGE[15]
Although California law does not provide for common law marriages, many Californians remain blithely unaware of that detail. They cohabit, have children, file joint tax returns, and take title to their residences as “husband and wife” or as “community property”. They tell their friends that they are married, they tell their relatives that they are married, and they tell each other that they are married. They think they are married. Nonetheless, under California law, they are not married. When their relationships dissolve, one of the parties, upon learning that the marriage is not valid, may attempt to “trace” assets to his or her earnings and claim them those assets to be separate property.
These “pseudo marriages” are well handled by the Marvin case. These pseudo marriages provide a classic implied in fact contract because the parties implicitly and explicitly acted as if they were married. Plaintiff alleges that because the parties acted as if they were married, there was a reasonable expectation that they would each be entitled to the rights of a legal spouse. Because there is usually more than adequate proof to establish that reasonable expectation, Plaintiff receives a recovery comparable to what a legal spouse might receive.
Cary[16] was specifically overruled by Marvin, which specifically held that the Family Law Act does not apply to cohabitants[17], but Alderson v. Alderson[18] reached the same result within the confines of the Marvin rule. The Alderson’s relationship appeared identical to the nice married couple who lived next door to them: they had children, filed joint returns, owned fourteen parcels of jointly titled real estate, and told everyone they were married. The Court of Appeal had no trouble affirming a judgment for an equal division of their assets based on an implied in fact contract, even though the parties “never bothered to actually spell out the terms of their agreement”[19].
The pseudo-marriage is a factually appealing case for a judge or a jury[20] If the underlying facts are good, the case shrieks for a remedy--even if the only permissible remedy is money damages. Plaintiffs typically allege fraud as well as contract theories, and if the Defendant denies the contract,
he can be looking at potential punitive damages on the fraud.
IV
COHABITANTS’ SUPPORT RIGHTS
An issue not raised in Alderson, but a logical follow up in a pseudo marriage, is that of support. The entitlement to support, and the terms of the support payments, depend on the legal basis for the support claim. Because the Family Law Act does not apply, the right to support must be based on the parties’ contract. If the parties’ express contract included provisions for support, or the parties’ reasonable expectations resulting in an implied in fact contract provided for support, support is permissible under Marvin.[21] The unanswered question is on what basis the support is to be paid – lump sum support (e.g. contract damages) or monthly support payments (e.g. a mandatory injunction for the payment of money). Because California law does not permit an injunction for money damages[22], it would appear that the support must be on a lump sum basis[23]. Because “normal” spousal support is modifiable based on changes in circumstances, because it terminates automatically upon the death of either party or the re-marriage of recipient, and because it is deductible to the payer and taxable to the recipient for income tax purposes, calculating of lump sum support requires expert testimony in the areas of family law, actuarial science, and taxation.
Attempts to short cut this procedural issue has been to no avail. Friedman v. Friedman[24] involved a pseudo-marriage of 21 years, three children, jointly owned real estate, and a disabled plaintiff. Plaintiff petitioned the divorce court for temporary support on the same basis as a petitioner in a Family Law Act proceeding. The trial court specifically found an implied contract for support and ordered temporary support on a monthly basis. The order was framed as a mandatory injunction based on irreparable injury and a reasonable probability of success at trial on the merits. The Court of Appeal reversed, holding that an order to pay money is not a cognizable provisional remedy under California contract law. The Court of Appeal held that the trial court lacked any inherent equity power to award pre-trial support, notwithstanding the above cited language in Marvin which authorized support based on express or implied contract.
Friedman highlights the procedural differences between a palimony proceeding and a Family Law Act proceeding in California. Notwithstanding the length and attributes of the Friedman’s relationship, the Court of Appeals applied the bright line test of a valid marriage; a one-month marriage would authorize temporary support whereas a 21 year relationship with highly appealing facts did not. In a dissenting opinion, Justice Poché noted that the plaintiff “has no more recourse than a buyer of widgets faced with a breach of a sale contract by its supplier.”[25]
V
SAME SEX RELATIONSHIPS
There seems little disagreement but that the Marvin decision applies to same sex relationships in California. Because such relationships are not illegal in California, and because sexual services cannot be the basis of any cohabitation contract, it is the non-sexual aspects of a relationship which make contracts enforceable in any event. The Marvin case discusses “non-marital partners” repeatedly (the text refers to a man and a woman exactly once).
The most recent California case involving a gay relationship is Whorton v. Dillingham.[26] Plaintiff alleged a contract functionally identical to the typical palimony allegation.[27] Although it mentioned the gay nature of the relationship, the Court of Appeal opinion is silent on whether the arrangement should be treated differently. Inasmuch as the Court of Appeal affirmed the trial court judgment in favor of plaintiff, it obviously did not believe that the parties’ sexual orientation was significant.
An older and oft criticized case reaching a contrary conclusion is Jones v. Daly[28] Jones is a primer on how not to plead a palimony case in California. Plaintiff alleged a “cohabitators’ agreement” in which he agreed to act as decedent’s “lover, companion, homemaker, traveling companion, housekeeper and cook” and additionally to give up his potential modeling career. Jones’ partner died two years later and the case arose after his creditor’s claim was rejected in probate. The trial court sustained a demurrer without leave to amend and the Court of Appeal affirmed, finding that the allegations of plaintiff’s complaint “clearly showed that plaintiff’s rendition of sexual services to [decedent] was an inseparable part of the consideration for the cohabitors’ agreement, and indeed was the predominant consideration.”[29]
The Court of Appeal continued
“neither the property sharing or the support provisions of the agreement rests upon plaintiff’s acting as [decedent’s] traveling companion, housekeeper or cook as distinguished from acting as his lover. The latter service forms an inseparable part of the consideration for the agreement and renders it unenforceable in its entirety.”[30]
Jones was criticized as “wrongly decided” in Bergen v. Wood,[31] a subsequent case involving the validity of consideration. Perhaps the major difference between Whorton and Jones is in the drafting of the plaintiff’s complaint. Jones was more “in your face” than Whorton in his allegations regarding the parties’ relationship. However, in light of Marvin, the contract in Jones should have been enforceable to the extent it did not rely on sexual services. The Court of Appeal refused to consider the possibility that there may have been a non-sexual aspect to that relationship in dismissing without leave to amend. This is directly contrary to Marvin, which held that homemaking services were valid consideration for a palimony contract.[32]
VI
COHABITATION
Two California cases suggest that cohabitation is a necessary condition for a palimony contract. Bergen v. Wood, supra, arose in the context of an older executive and a younger woman with whom he traveled and attended social events; they never actually lived together. The Court of Appeal reversed a trial court order for post-relationship support finding a lack of consideration for the contract. The Court of Appeal held that
“Cohabitation is necessary not in and of itself, but rather, because from cohabitation flows the rendition of domestic services, which services amount to lawful consideration for a contract between the parties.”[33]
The Court of Appeals discussed the types of services otherwise provided by plaintiff to defendant – travel companion and social partner – and found them not to be consideration for a palimony agreement as a matter of law. The Court of Appeal noted that if cohabitation were not a prerequisite for recovery, every dating relationship would have the potential to support a palimony case.
Although Bergen is often cited for the proposition that cohabitation is prerequisite to a palimony case, it is better read as an analysis of what constitutes legal consideration for a palimony contract. It holds that social companionship in the context of a dating relationship is insufficient as a matter of law.[34]
A previous case also finding cohabitation to be a sine qua non for recovery in palimony was Taylor v. Fields.[35] Plaintiff had a relationship with Mr. Fields for 42 years. He was married the entire time. The action arose as a creditor’s claim in his probate proceeding. The Court of Appeal, in affirming summary judgment in favor of the defendant, noted that the relationship “was nothing more than that of a legally married man and his mistress … the sexual services portion of the consideration “forms an inseparable part of the consideration for the agreement and renders it unenforceable in its entirety.”[36]
A contrary case is Milian v. De Leon.[37] The parties were engaged to be married and pooled their resources to purchase a residence as joint tenants. The trial court found an implied contract to divide property equally notwithstanding the parties’ differential contributions toward purchase. The Court of Appeal noted that although Marvin gave cohabiting parties the same right to contract as non-cohabiting parties, cohabitation itself was not necessary for an agreement. It did note the cohabitation could be an evidentiary fact in the determination of whether an implied agreement exists or not.
VII
TACKING
People frequently live together for a period of time and then marry. Should the marriage not last, California law creates an uncomfortable mix of legal theories and procedural issues.
Because the rights of non-marital cohabitants are based in contract and not status (marriage), the Family Law Act does not apply to any pre-marital rights the parties may have. The result is the requirement of separate actions to enforce palimony rights and the Family Law Act rights. Because the proceedings invariably involve “common issues of law or fact”, they may be joined for hearing or trial.[38] However, this remedy works awkwardly because the palimony causes of action are properly tried to a jury whereas proceedings under the Family Law Act are heard by the Superior Court sitting as a court of equity without a jury. Although the cases are ostensibly consolidated, the palimony must go through the expense of two trials.
A typical case is Estate of Fincher.[39] In Fincher, the parties cohabited between 1964 and 1971. Wife then married and subsequently divorced another. The parties cohabited again between November 1975 until their marriage four months later. Husband died in 1978. Wife’s petition to enforce her rights as a surviving spouse and her rights under a Marvin partnership agreement were properly joined, and although the equitable issues and statute of limitation issues could be decided by a court, the right to jury trial remained on the underlying partnership allegations.
Similar problems arise in the arena of support. In Marriage of Bukaty[40] the parties had a 12-year marriage ending by divorce. The couple then maintained an “on again off again” relationship for an additional 27 years. They remarried for 19 months and when the second marriage failed, Wife sought support based on a 40-year relationship. The Court of Appeal declined to exercise its jurisdiction under the Family Law Act to consider “other factors the court determines are just and equitable”[41] holding that the Family Law Act which divides the community property of Husband and Wife and provides spousal support does not apply to a non-marital relationship.[42]
VIII
CONCLUSION
California law provides neither palimony-specific remedies nor procedural shortcuts for cohabitors. It does not prohibit any remedies—or defenses--otherwise available in law or equity. If the parties owned real property together, partition law applies[43]; if they owned a business together, partnership or corporate law remedies are available[44]. Should a party terminate the relationship, the same statute of limitations rules apply as in any civil matter based on that cause of action.[45] If a party dies, the law of will contracts may be utilized. As the California Supreme Court held in Marvin, “adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights.”[46]
I hope this gives you a better understanding of palimony, and to assist you in making your own decisions of whether to follow this type of cause of action, or to simply follow a traditional, and simpler, method of breach of contract.
Good luck to you,
IAAL
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[1] . . .
[2](1976) 18 Cal.3d 660
[3] Ultimately, Plaintiff took nothing by her Complaint. See Marvin v. Marvin (1981) 122 Cal.App.3d 871(“Marvin II”) which reversed the rehabilitative alimony award fashioned by the trial court after remand.
[4] Marvin at 684; ft. 25.
[5] Marvin at 674
[6] Marvin at 668-69
[7] Norman v. Thompson (1898) 121 Cal. 620.
[8] But see Justice Clark’s concurring and dissenting opinion in Marvin, which accused the majority of “perform[ing] a nunc pro tunc marriage, dissolv[ing] it, and distribut[ing] its property on terms never contemplated by the parties, case law, or the Legislature” Marvin at 686.
[9] The Family Law Act became effective 1/1/70 in California and created no fault divorce. Its provisions were recodified into the Family Code effective 1/1/94.
[10] This had already been done by the California Court of Appeal in Marriage of Cary (1973) 34 Cal.App.3d 345 and Estate of Atherley (1975) 44 Cal.App.3d 758; contra: Beckman v. Mayhew (1975) Cal.App.3d 529.
[11] Marvin at 681.
[12] California Family Code Section 308; Marriage of Smyklo (1986) 180 Cal.App.3d 295.
[13] See Etienne v. DKM Enterprises, Inc., (1982) 136 Cal.App.3d 487, holding that joint business trips to Texas (a common law marriage state) which did not create a marriage under Texas law did not create a marriage under California law.
[14] Alabama, British Columbia, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, Nova Scotia, Ohio, Oklahoma, Ontario, Pennsylvania, Rhode Island, South Carolina, Texas, Florida, and Utah have all permitted common law marriage, although tested under different standards. In California, this becomes a pure issue of conflicts of law. The marriage must be valid in the state in which it was contracted at the time it was contracted. Consultation with knowledgeable local counsel in the relevant jurisdiction is therefore essential.
[15] This term is the author’s; it has no authority or precedential value. It is used as a shorthand for the type of implied contract described below.
[16] See footnote 10, above
[17] Marvin at 681
[18] (1986) 180 Cal.App. 3d 450
[19] Alderson at 463
[20] Because palimony cases are contract cases, they may be tried before a jury.
[21] Marvin at 684; ft. 26.
[22] California Code of Civil Procedure Section 526 (a)(4).
[23] Several trial courts have attempted to fashion support remedies in the guise of “rehabilitative alimony”, most have been overruled. See Marvin II, supra, Bergen, infra. An obvious exception is when a party can prove an agreement for post-relationship support payments.
[24] (1993) 20 Cal.App.4th 876.
[25] Friedman at 890-91.
[26] (1988) 202 Cal.App.3d 447.
[27] Excepting that Plaintiff agreed to act as chauffeur and bodyguard rather than homemaker and hostess.
[28] (1981) 122 Cal.App.3d 500.
[29] Jones at 508.
[30] Jones at 509; emphasis added.
[31] (1993) 14 Cal.App.4th 854 at 859.
[32] Marvin at 670; ft. 5.
[33] Bergen at 858.
[34] An excellent analysis of this dichotomy is found in Los Angeles Lawyer, October 1994 at page 28. The article “Just Pals” was written by Jared Laskin, the author of the defendant/appellant’s brief in Bergen v. Wood.
[35] (1986) 178 Cal.App.3d 653.
[36] Fields at 658 and 665.
[37] (1986) 181 Cal.App.3d 1185.
[38] California Code of Civil Procedure Section 1048.
[39] (1981) 119 Cal.App.3d 343.
[40] (1986) 180 Cal.App.3d 143.
[41] Family Code Section 4320(l).
[42] Bukaty at 148.
[43] Including the presumption that legal title controls, absent clear and convincing evidence to the contrary; California Evidence Code Section 662; Tannehill v. Finch (1986) 188 Cal.App.3d 224
[44] Including fiduciary duties; see Marvin at 682; fn. 22.
[45] Cochran v. Cochran (1997) 56 Cal.App.4th 1115; Johnnie Cochran was less successful in his own case than in People v. O. J. Simpson
[46] Marvin at 674.
