California "Palimony" Law: An Overview

 

 

 

 

Although the history of California "palimony" law did not really start with Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106] (see A Chronological Summary of California "Palimony" Law Before Marvin), that famous case is the best starting point for gaining a basic understanding of what "palimony" is all about.

The Marvin decision:

In Marvin, the plaintiff, Michelle Marvin, alleged that she and Lee Marvin entered into an oral agreement which provided that while "the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined." Marvin, supra, 18 Cal.3d at 666. The parties allegedly further agreed that Michelle would "render her services as a companion, homemaker, housekeeper and cook." Id. Michelle sought a judicial declaration of her contract and property rights, and sought to impose a constructive trust upon one half of the property acquired during the course of the relationship.

The trial court granted a judgment on the pleadings in favor of the defendant, holding that the alleged agreement was unenforceable. The California Supreme Court reversed, stating that "a contract between nonmarital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit consideration of meretricious sexual services." Id. at 668-669 (emphasis in original.) The Court held:

In summary, we base our opinion on the principle that 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 . . . . 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 contracts. Id. at 674.

Although the plaintiff's complaint alleged only an express contract, the Supreme Court went on to address the issue of "the property rights of a nonmarital partner in the absence of an express contract." Id. Here, the Supreme Court made new law. Prior California cases had refused to enforce implied contracts between nonmarital cohabitants. The Court overruled that line of cases, holding that in the absence of an express agreement the plaintiff might be able to establish an implied contract or implied partnership, and might be able to invoke such remedies as constructive trust, resulting trust, and quantum meruit.

In a footnote, the Court stated that its opinion did not "preclude the evolution of additional equitable remedies to protect the expectations of the parties to a nonmarital relationship in cases in which existing remedies prove inadequate." Id. at 684, n. 25. Notwithstanding this suggestive footnote the Marvin decision did not create any new legal theories or causes of action. Rather, the express intention of the Court's opinion was simply to treat nonmarital cohabitants "as we do any other unmarried persons." Id. at 682 (emphasis supplied).

"Palimony" -- a misnomer:

The term "palimony" implicitly analogizes the rights of a nonmarital partner to the right of a spouse to receive alimony. However, a Marvin action is in no way analogous to an action for dissolution of marriage.

The Supreme Court in Marvin expressly declined to treat unmarried cohabitants like married persons, overruling two prior decisions of the Court of Appeal which had applied the Family Law Act to unmarried cohabitants. Id. at 681. Since Marvin, California courts have been scrupulous in separating Marvin actions from domestic relations actions. The courts have held:

Trial courts in divorce proceedings do not have jurisdiction over Marvin claims arising out of premarital cohabitation. In re Marriage of Johnson (1983) 143 Cal.App.3d 57 [191 Cal.Rptr. 545]. (A Marvin claim filed in a civil action may, however, be consolidated with a dissolution proceeding. Id.)

An award of spousal support may not be based on the parties' cohabitation before marriage. In re Marriage of Bukaty (1986) 180 Cal.App.3d 143 [225 Cal.Rptr. 492].

A Marvin case may not be processed in the superior court under the special family law rules. Schafer v. Superior Court (1986) 180 Cal.App.3d 305 [225 Cal.Rptr. 513]. 

Jurisdiction standards applicable to domestic relations cases do not apply to Marvin actions. Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1357-1358 [228 Cal.Rptr. 807].

The obligation to pay support pursuant to a stipulated judgment in a Marvin action is -- unlike an order for spousal support -- dischargeable in bankruptcy. In re James P. Doyle (9th Cir. BAP 1986) 70 B.R. 106.

A former unmarried partner is not entitled to an award of pendente lite support. Friedman v. Friedman 20 Cal.App.4th 876 (1993).

Accordingly, the term "palimony" is inaccurate insofar as it implicitly compares a "pal's" rights with the rights of a divorcing spouse. A spouse's right to receive alimony and to share in marital property is based on his or her status as a spouse. A "pal" does not have any comparable automatic right to property or support based only on his or her status as a nonmarital partner. Rather, a Marvin plaintiff must prove some other underlying basis for his or her claim, such as an express or implied contract.

This point was greatly clarified in the sequel to the Marvin case, "Marvin II" (Marvin v. Marvin (1981) 122 Cal.App.3d 871 [176 Cal.Rptr. 555]). The Supreme Court's decision in the first Marvin case reversed a judgment on the pleadings and remanded the case for further proceedings. Thereafter, Michelle Marvin's claims were tried in the Superior Court without a jury. The trial court found that the parties never agreed to share their property and that Lee Marvin did not agree to support Michelle. Nevertheless, the trial court awarded Michelle $104,000 for the purpose of allowing her to be rehabilitated or to learn new employable skills.

The Court of Appeal reversed, holding that the award was improper because "there is nothing in the trial court's findings to suggest that such an award is warranted to protect the expectations of both parties." Id. at 876 (emphasis in original). Importantly, the court noted that while footnote 25 of the Marvin decision spoke of the evolution of additional equitable remedies, a court of equity "may not create totally new substantive rights under the guise of doing equity." Id.

A similar "rehabilitative" award was reversed in Taylor v. Polackwich (1983) 145 Cal.App.3d 1014, 1021 [194 Cal.Rptr. 8], in which the court of appeal stated: "[W]hile a rehabilitative award is a proper means of enforcing rights which cannot otherwise be adequately enforced, an equitable remedy may not be employed to grant rehabilitation to one who has no underlying right to relief on any theory."

Marvin II and Polackwich should have eliminated any lingering belief that Marvin might have created some new right whereby a "pal" could collect "palimony" based on mere status as a cohabitant and nothing more. The primary "right" granted by Marvin is simply the right every person has to seek enforcement of his or her lawful contracts.

Marvin II notwithstanding, there is still some confusion about just what Marvin stands for. That confusion is manifested, for example, in the aberrant opinion of the Court of Appeal for the Second District in Taylor v. Fields (1986) 178 Cal.App.3d 653 [224 Cal.Rptr. 186].

In Taylor v. Fields, the plaintiff, Taylor, had a relationship with a married man, Leo, for 42 years. After Leo died Taylor sued his widow, alleging breach of an agreement by Leo to take care of Taylor financially.

As the Court of Appeal correctly pointed out, the relationship alleged by Taylor was "nothing more than that of a legally married man and his mistress." Id. at 658. The alleged contract rested on meretricious consideration and was unenforceable. That was, in fact, one of the alternative holdings in support of the decision. The analysis could have begun and ended there.

Inexplicably, however, the Court of Appeal seized on the fact that the parties did not live together as its primary basis for denying Taylor recovery. First, the Court of Appeal noted that in Marvin, and the cases cited therein, the courts "upheld agreements where the parties lived together and relied on agreements not based on meretricious consideration." Id. at 661. The court then launched into a discussion of cases involving claims by cohabitants for loss of consortium or wrongful death, noting one case which had extended the right to sue for loss of consortium to cohabitants who engaged in "stable and significant" relationships.

In an insupportable leap of logic, the Fields court then held that cohabitation is a prerequisite to recovery in a Marvin-type action and that "Taylor's contract with Leo is unenforceable because there is no showing of stable and significant cohabitation . . . ." Id. at 666. In so holding, the court stated:

While Taylor avers she and Leo occasionally spent weekends together and registered as husband and wife, such claims are inadequate to bring their relationship within Marvin principles. Id. at 663.

The above statement demonstrates a profound misunderstanding of Marvin. After all, what are "Marvin principles?" The only true "Marvin principle" is to treat nomarital cohabitants "as we do any other unmarried persons" -- principally, by enforcing their contracts. In effect, then, the Fields court illogically held that one must be a cohabitant to be treated like a non-cohabitant (i.e., like "other unmarried persons"). The loose language in Fields, if taken literally, would lead to the reductio ad absurdum that no contract is enforceable unless the contracting parties live together.

The Court of Appeal for the Second District purported to follow Fields in Bergen v. Wood (1993) 14 Cal.App.4th 854 [18 Cal.Rptr.2d 75]. However, the Bergen court backed away from the absolutist language in Taylor v. Fields, stating: "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." Id. at 858. Bergen paves the way for a future case repudiating the Second District's cohabitation "requirement," and holding that the only requirement is that the contract be supported by some lawful consideration severable from the sexual relationship (whether or not that consideration takes the form of "domestic services").

The correct rule on cohabitation was stated by the Court of Appeal for the Fourth District in Milian v. De Leon (1986)181 Cal.App.3d 1185, 1193 [226 Cal.Rptr. 831] as follows: "[C]ohabitation is not a prerequisite to the finding of an implied agreement between unmarried persons concerning their property."

Despite some lingering confusion exemplified by Fields, Marvin did not create a unique cause of action -- rather, it simply extended existing causes of action to unmarried cohabitants. However, there are some unusual defenses which are sometimes available in Marvin-type cases. These are explored in the article Defenses in Marvin Cases.

The information on this Web page is based on California law.  It is not legal advice and cannot replace the advice of competent legal counsel licensed in your State based on the specific facts and circumstances of your case. See Disclaimer.