Tag Archives: cohabitation

Alimony v. Palimony (and what implies a promise)

While spousal support follows in most dissolution proceedings in the form of alimony, non-marital couples who cohabitate have the possibility of bringing a Marvin action.  A Marvin action is brought by a partner who wants to equally divide property acquired during the non-marital relationship where the partners lived together.  There is also a possibility that non-marital cohabitating partners can ask for partner support following the dissolution of the non-marital cohabitation.


Alimony is a legal obligation to support a spouse following a dissolution of marriage in family court; the amount of support is determined by California’s Family Code (see §4320), or can be agreed to in a premarital agreement.  Palimony is support payments granted to non-marital partners who lived together.  Palimony is not guaranteed by law, and is generally granted in civil court after a showing of a contract or an agreement.

This agreement may either be express (written) or implied (by conduct).

The process of property distribution or the length and amount of any support in a Marvin action will be determined by the agreement of partners.  Termination of partner support will also be decided by the contract (unlike alimony for marital couples which is determined by the Family Code (see §4337)).  Unlike alimony, judges do not have the power to modify palimony because of “changed circumstances” (see Family Code §4337 and Dexter v. Dexter).  There are also different tax implications between alimony and palimony.

If the partner who asks for an equal split of property that was purchased during cohabitation or partner support cannot prove a contract, then there is a possibility for recovery in quantum meruit (see below).


Unlike alimony cases for marital couples (where the right arises automatically by law), the right to palimony comes to existence with a contract.  A cohabitation agreement, similar to a premarital agreement, would be an example of an express contract.

Filing a claim for both Marvin Support and Spousal Support:

There is a possibility that a person can have a claim for both alimony and palimony.  If the couple cohabitated and acquired property (which would legally be classified as separate property), and then married (property is acquired as community property during marriage, generally),  an individual can ask for palimony in civil court and still have a right to alimony in family court.  This can be desirable if the couple lived together for a long time, but had a short term marriage.  It is possible to consolidate the two proceedings, depending on what would be most advantageous to the person’s best interest (see Watkins v. Watkins).


If an express contract does not exist, an implied contract may be proven.  “In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties,” California courts state (see Marvin v. Marvin).

However, whether equal distribution or support is pursued as an express or implied contract, it is important to keep in mind “both types are based upon the expressed or apparent intention of the parties” (see Maglica v. Maglica). 

Equal Division of Assets Acquired During Cohabitation

Proving an implied contract through behaviors and conduct could be difficult.  California case law has given some guidance on what behavior can manifest intent to imply an agreement to equally split the property if the couple breaks up.

Evidence the parties impliedly agreed to share equally in their acquisitions includes the following: the testimony of a partner, if the partners socially held themselves out as spouses, if the partners (and children) took on the same last name, if the partners pooled their financial resources and used the pooled income to purchase property, how property title was taken, and if the partner rendered services or paid bills on the property in dispute (see Alderson v. Alderson).

“Such facts, together with others bearing more directly on the [property] and the way the parties treated the equity and proceeds of the [property], can be part of a series of facts which do show an agreement,” California case law has affirmed (see Maglica v. Maglica).   To clarify, “While the facts that a couple live together, hold themselves out as married, and act as companions and confidants toward each other do not, by themselves, show an implied agreement to share property, those facts, when taken together and in conjunction with other facts bearing more directly on the alleged arrangement to share property, can show an implied agreement to share property”  (see Maglica v. Maglica).

Partner Support

Proving the existence of a implied contract for one partner to support the other partner after a break up is more difficult.  An agreement for non-marital partner support (palimony) cannot be based on the parties’ prior cohabitation (see In re Marriage of Bukaty).

In a California Marvin action for temporary partner support following the end of 21 years of cohabitation, the ‘wife’ testified that she and the ‘husband’ agreed expressly (at one time) that he would support her if the couple separated.  ‘Wife’ testified that ‘husband’ “said not to worry about support” (see Friedman v. Friedman).  ‘Husband’ testified the couple never discussed the concept of support after separation.  ‘Husband’ also testified that he did nothing he was aware of to lead ‘wife’ to believe he would provide support for her if they separated.

The court sided with the ‘husband’ because, the court reasoned, “the statement of decision does not reflect what specific conduct of the parties led to its conclusion that such an implied agreement existed…moreover, the statement of decision fails to set forth the terms of the implied agreement…”  The appellate court was not convinced that an implied agreement existed because many questions were left unanswered regarding support:  the amount of support, the length of time support would last, from what moment in the relationship support would be paid.

While a trial court ruled in ‘wife’s’  favor for temporary partner support “in the same manner as if the parties had been legally married,” on appeals, the court said that would be a revival common law marriage in California.  And California is clear in that if a couple wants the same rights of a married couple, then they should get married (or file as domestic partners).  Mr. and Ms. Friedman planned a wedding during the 21 years of their cohabitation, but never married.  The parties specifically chose to live together without the ‘sanction of the State’ (and the legal protection that sanction brings).

At the heart of an implied contract is the intent to promise.  When a couple does not clarify what will happen if a break up occurs, it is hard to prove that intent.

QUANTUM MERUIT (“As much as he deserves”)

Quantum meruit is a Latin term for ‘as much as he deserves.’  It is the idea that someone should get paid for beneficial goods or services which he or she bestows on another (see Maglica v. Maglica).  If a contract cannot be proven, then recovery for value of services rendered may be recovered in quantum meruit.

It is common for a person without a contract or a marriage to devote his or her efforts to their cohabitant and later seek compensation for those efforts.  However, there is a two-year statute of limitation (the amount of time a person has to bring a legal claim), which leads to the questions of for how many years of service is compensation owed?

Compensation for the last two years, or for the service throughout the entire cohabitation/relationship?

This answer depends on when the person asking for compensation expected to be compensated.  It is not typical for partners to expect financial compensation for their work and effort while still in the relationship (imagine if a spouse asked for an hourly fee for cooking dinner).

But there is an expectation of compensation, California courts have decided.  “The fictitious implied promise to pay for services inherent in the relationship entailed another fictitious promise to pay at termination of the services,” California courts have determined (see Lazzarevich v. Lazzarevich).  If a couple acts like they are married,  then the partner in a Marvin relationship can try to assert that he or she expected compensation “at the termination of the relationship” (see Maglica v. Maglica).  Because partners do not expect to be financially compensated for their services (which are inherent in a relationship) during the relationship, a ‘fictitious’ promise to pay may be implied at the termination of the services (which usually follows the end of the relationship).  This means that a partner might be able to get compensation for services rendered from the beginning of the Marvin relationship, even if the relationship is over two years old.

(A constructive or resulting trust may also be an option for a partner in a Marvin action as equitable remedies.)

Marvin actions can be highly contested.  A clear intent (ideally written) helps the situation.  Sometimes a judicial conclusion may be “harsh” (Bukaty), but the judge is ‘bound by the laws as they are found, not as the judge fervently wishes them to be (Friedman).’

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Filed under Property Determination, Same-Sex, Spousal Support

Marvin: For Those Who Cannot, or Do Not Want to Marry

While marriage is “fundamental to our very existence and survival (Loving v. Virginia),” there are reasons why a traditional marriage might not be on option. A Marvin relationship is a type of contractual relationship that allows the partners to determine property characterization in the event of a break-up and allows for an agreement regarding partner support.  This agreement works like a prenup, and explains what will happen if the partners break-up.



Under current California and federal law, LGBT Californians cannot marry partners of the same sex.  During the brief window of marriage equality in California, LGBT couples wed.  For those of them seeking a divorce, problems typically arise with so-called ‘short-term marriages’ of LGBT couples who had been operating as an economic unit much earlier than their marriage.   Because the court only looks to property acquired from date of marriage to date of separate as community property, anything acquired prior to legal marriage is typically characterized as separate property of the acquiring spouse.

Hence, for example, a couple that acquired property together for ten years prior to their legal marriage (because they weren’t allowed to marry), would have to turn to a civil court outside of the family court judge that presided over their divorce, to determine the shared interest in any property or assets acquired prior to legal marriage.  A Marvin action (discussed fully below) would allow a partner in such a relationship to determine his or her interest in this property acquired during the pre-marital cohabitation.


“Some couples may wish to avoid the permanent commitment that marriage implies, yet be willing to share equally any property acquired during the relationship…others may engage in the relationship as a possible prelude to marriage,” the California Supreme Court noted in the landmark 1976 decision of Marvin v. Marvin.  In a case dealing with a six-year cohabitating heterosexual couple, the Supreme Court acknowledged the “substantial increase in the number of couples living together without marrying.”

Why might a couple live together and not marry? In one California example, the children would have lost their insurance coverage if their mother remarried (see Byrne v. Laura).  Marvin too noted that some people “may fear the loss of pension, welfare, or tax benefits” following a marriage.


Marvin ruled that cohabitating non-marital couples can form agreements between themselves, and courts could enforce these agreements.  “If a man and a woman [who are not married] live together as husband and wife under an agreement to pool their earnings and share equally in their joint accumulations, equity will protect the interests of each in such property,” the court affirmed.  This applies to a man and a man, or a woman and a woman as well.

Hence, if two partners agree to live together with an agreement and understanding of how to share the acquired assets, California will honor that agreement.   The partners may agree to form an economic unit (as the law would treat California spouses), and hold all property acquired during the relationship in accordance with the law governing community property; conversely they may agree that each partner’s earnings and property remains separate property of the earning spouse (see Marvin).  This means that partners in a Marvin relationship may form cohabitation agreements akin to spousal premarital agreements.

If a Marvin-type relationship is coming to an end, then the partners can enforce those agreements.  Property can be equally distributed (if that was the agreement), and partner support can be secured (if that was the agreement).

Why This is an Important Change:

California (like many states) recognizes non-marital (ie: same-sex) couples are living as a family.   California allows these couples to create enforceable agreements regarding the division of property and support.  This contrasts with many courts in the past who ruled these types of agreements as ‘bad social policy’ (and unenforceable) because of the strong preference for marriage and hetero-normative households.

No Common Law Marriage in California:

California does not have common law marriages (informal marriages established by conduct).  A Marvin relationship does not mean the partners were ‘married,’ so the rights granted to marital spouses do not pass on to Marvin partners.  Marriage comes with significant rights and responsibilities.  One set of rights and obligations is a fiduciary duty between spouses with regard to the management and control of marital assets, and a remedy for a breach of that duty (see California Family Code §§1100-1103).  Instead, Marvin partners only get the right to enforce the contracts established by the partners.


A Marvin suit is an action to enforce a contract.  That means in order to have a Marvin-type of relationship, the partners needed to have an agreement (a contract) that would provide for equal distribution of property (if that was the agreement), or partner support (if that was the agreement); any rights acquired through a Marvin relationship are those agreed upon by the partners.

Express or Implied Agreement

Ideally, a cohabitation agreement is written and signed by the partners (which would make it an express agreement).  However, an express agreement is not required.  “The Courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or implied agreement, or some other tacit understanding between the parties.

If there is no written express agreement, the implied agreement must be proven with a ‘preponderance of the evidence’ (meaning the contract’s existence is certain more probable than not).  If title to property is held solely in one partner’s name, but there is an implied agreement to equally own the property, that agreement must then be proven by “clear and convincing” evidence (see California Evidence Code §662).

There are several theories for recovery in a Marvin suit, and all of them are largely based in contract law (unlike other support actions which are based in family law).  Once a contract is proven, the partner can sue for a breach of express contract, breach of an implied contract, breach of a implied partnership or joint venture, quantum merit (the value of beneficial services rendered), or imposition of a trust.  The Marvin decision also leaves room for “additional equitable remedies,” which were unsuccessfully argued when the Marvins returned to court.

An attorney should be careful to only seek damages under those theories that the attorney can support with probable cause; otherwise a counter claim for malicious prosecution may be available to the other party (see Crowley v. Katleman).


The non-marital partners are required to live together.  “If cohabitation were not a prerequisite to recovery, every dating relationship would have the potential” to be a Marvin-type relationship where partners ask for equal division or support at the break-up (see Bergen v. Wood).

Usually full-time cohabitation is required, but there have been some successful Marvin suits where the couple only lived together part-time.  Cohabitation requirements may be satisfied in “appropriate” cases by living arrangements that are less than full time (see Cochran v. Cochran).

No ‘Consideration of Meretricious Sexual Services’

Meretricious is ancient Latin for prostitution.  Sex cannot be an inseparable part of the non-marital cohabitation agreement.  The Marvin court explained, “So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements.”  Courts know that partners have sex, so an agreement by one partner to ‘do whatever a spouse does’ does not solely rest on meretricious consideration, even though sexual relations are one aspect of what a spouse does (see Alderson v. Alderson).

Sexual Orientation

The focus of Marvin-type relationships is not the partners’ gender or sexual orientation, but rather the existence of an agreement.  Nothing in Marvin suggests that this type of action is limited to heterosexual couples.  In fact, a Marvin suit was brought against tennis player Martina Navratilova by her partner in an action for partner support in a non-marital relationship (palimony).  A Marvin suit also ‘outed’ figure skater Brian Orser.

Because LGBT Californians are not allowed to marry, a Marvin type of relationship might afford them some legal protections.  What is most important, however, is that the couple has an understanding of the expectations the partners have of the relationship, and of each other.  This understanding will not only make a Marvin suit go smoother, it could also enhance the chances of a successful relationship.



Filed under Partner Support, Property Determination, Same-Sex, Spousal Support