Ordinary cohabitation

Notre Dame Law Review

Volumn 76, Issue 5, 2001, Pages 1381-1408

  Estin, Ann Laquer ^a  

^a UNIVERSITY OF IOWA   (United States)

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EID: 0035623457     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (165)

1. 557 P.2d 106 (Cal. 1976).
2. Id. at 110.
3. Myrna Oliver, "Marvin" Cases Hard to Win, Palimony Proves to Be an Exclusive Pot of Gold, L.A. TIMES, Jan. 30, 1986, at 1.
4. Id.
5. See Marvin, 557 P.2d at 112.
6. Id.
7. See id. at 122-23.
8. Judge Marshall's opinion is reproduced at Marvin v. Marvin, 5 Fam. L. Rep. (BNA) 3077, 3077 (Cal. Super. Ct. 1979).
9. See id. at 3085.
10. See Marvin v. Marvin, 176 Cal. Rptr. 555, 559 (Ct. App. 1981).
11. See Associated Press, Tough-Guy Actor Lee Marvin, CHI. TRIB., Aug. 30, 1987, § 2, at 8; Bruce McCabe, Lee Marvin, With Not Enough Warts, BOSTON GLOBE, Dec. 19, 1997, at E16 (reviewing Pamela Marvin's memoir: Lee: A Romance); Bill Zwecker, Memoir, Film Spotlight Lee Marvin, the Man, CHI. SUN-TIMES, Nov. 15, 1998, at 3; see also Lee Marvin Private First Class, United States Marine Corps Movie Actor, at http:// ww.arlingtoncemetery.com/lmarvin.htm (Dec. 16, 2000).
12. See Associated Press, Tough-Guy Actor Lee Marvin, CHI. TRIB., Aug. 30, 1987, § 2, at 8; Bruce McCabe, Lee Marvin, With Not Enough Warts, BOSTON GLOBE, Dec. 19, 1997, at E16 (reviewing Pamela Marvin's memoir: Lee: A Romance); Bill Zwecker, Memoir, Film Spotlight Lee Marvin, the Man, CHI. SUN-TIMES, Nov. 15, 1998, at 3; see also Lee Marvin Private First Class, United States Marine Corps Movie Actor, at http:// ww.arlingtoncemetery.com/lmarvin.htm (Dec. 16, 2000).
13. See Associated Press, Tough-Guy Actor Lee Marvin, CHI. TRIB., Aug. 30, 1987, § 2, at 8; Bruce McCabe, Lee Marvin, With Not Enough Warts, BOSTON GLOBE, Dec. 19, 1997, at E16 (reviewing Pamela Marvin's memoir: Lee: A Romance); Bill Zwecker, Memoir, Film Spotlight Lee Marvin, the Man, CHI. SUN-TIMES, Nov. 15, 1998, at 3; see also Lee Marvin Private First Class, United States Marine Corps Movie Actor, at http:// ww.arlingtoncemetery.com/lmarvin.htm (Dec. 16, 2000).
14. See Associated Press, Tough-Guy Actor Lee Marvin, CHI. TRIB., Aug. 30, 1987, § 2, at 8; Bruce McCabe, Lee Marvin, With Not Enough Warts, BOSTON GLOBE, Dec. 19, 1997, at E16 (reviewing Pamela Marvin's memoir: Lee: A Romance); Bill Zwecker, Memoir, Film Spotlight Lee Marvin, the Man, CHI. SUN-TIMES, Nov. 15, 1998, at 3; see also Lee Marvin Private First Class, United States Marine Corps Movie Actor, at http:// ww.arlingtoncemetery.com/lmarvin.htm (Dec. 16, 2000).
15. See David Cuthbert, Who is that Masked Man ? "Happy Face" Had a Van Dyke Beard, NEW ORLEANS TIMES-PICAYUNE, Jan. 1, 2000, at E1 (reviewing television biography special); Monica Guttman, Dick Van Dyke: Once You Make Them Laugh, You Are Hooked, ST. PETERSBURG TIMES, Sept. 21, 1986, at 7; Myrna Oliver, Palimony Pays for "Third Marvin" - Their Attorney, L.A. TIMES, Jan. 30, 1986, at 24.
16. See David Cuthbert, Who is that Masked Man ? "Happy Face" Had a Van Dyke Beard, NEW ORLEANS TIMES-PICAYUNE, Jan. 1, 2000, at E1 (reviewing television biography special); Monica Guttman, Dick Van Dyke: Once You Make Them Laugh, You Are Hooked, ST. PETERSBURG TIMES, Sept. 21, 1986, at 7; Myrna Oliver, Palimony Pays for "Third Marvin" - Their Attorney, L.A. TIMES, Jan. 30, 1986, at 24.
17. See David Cuthbert, Who is that Masked Man ? "Happy Face" Had a Van Dyke Beard, NEW ORLEANS TIMES-PICAYUNE, Jan. 1, 2000, at E1 (reviewing television biography special); Monica Guttman, Dick Van Dyke: Once You Make Them Laugh, You Are Hooked, ST. PETERSBURG TIMES, Sept. 21, 1986, at 7; Myrna Oliver, Palimony Pays for "Third Marvin" - Their Attorney, L.A. TIMES, Jan. 30, 1986, at 24.
18. See Myrna Oliver, Arthur K. Marshall: L.A. Judge Presided Over Actor Lee Marvin's Palimony Trial, L.A. TIMES, Nov. 24, 1999, at A18.
19. See Ann W. O'Neill, Attorney Mitchelson Fit to Practice Law Again, Judge Rules, L.A. TIMES, May 16, 2000, at B3; see also United States v. Mitchelson, No. CR-92-00716-WK(JR), 1995 WL 139227, at *3 (9th Cir. Mar. 29, 1995).
20. For recent examples, see Evening Update, Actor Jack Klugman Wins $5 Million Palimoǹy Suit, CHI. TRIB., Dec. 2, 1999, at 2; Richard Marosi, Maglicas Reach a Palimony Settlement, L.A. TIMES, Mar. 14, 2000, at B1; see also Oliver, supra note 3, at 1.
21. For recent examples, see Evening Update, Actor Jack Klugman Wins $5 Million Palimoǹy Suit, CHI. TRIB., Dec. 2, 1999, at 2; Richard Marosi, Maglicas Reach a Palimony Settlement, L.A. TIMES, Mar. 14, 2000, at B1; see also Oliver, supra note 3, at 1.
22. See Rehak v. Mathis, 238 S.E.2d 81, 82 (Ga. 1977); Hewitt v. Hewitt, 394 N.E.2d 1204, 1211 (Ill. 1979).
23. See W. States Constr., Inc. v. Michoff, 840 P.2d 1220, 1224-25 (Nev. 1992); Connell v. Francisco, 898 P.2d 831, 836-37 (Wash. 1995).
24. This was true even before the Marvin decision. See generally R.P. Davis, Annotation, Rights and Remedies in Respect of Property Accumulated by Man and Woman Living Together in Illicit Relations or Under Void Marriage, 31 A.L.R.2d 1255 (1953) (citing cases). Although there is legislation in a few states addressing claims by cohabitants, the law in this area remains mostly judge-made. Minnesota and Texas statutes require that cohabitation agreements be in writing. See MINN. STAT. ANN. § 513.075 (West 1990); TEX. Bus. & COM. CODE ANN. § 26.01 (b) (3) (Vernon 1987); see also N.H. REV. STAT. ANN. § 457:39 (1992) ("Persons cohabitating and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married.").
25. Marvin v. Marvin, 557 P.2d 106, 109 (Cal. 1976) (citing Patrick A. Nelson, Comment, In re Cary: A Judicial Recognition of Illicit Cohabitation, 25 HASTINGS L.J. 1226 (1974)).
26. U.S. DEP'T OF COMMERCE, 1999 STATISTICAL ABSTRACT OF THE UNITED STATES 60 (1999).
27. See Pamela J. Smock, Cohabitation in the United States: An Appraisal of Research Themes, Findings, and Implications, 26 ANN. REV. SOC. 1, 7 (2000). One reoccurring legal question is how to treat a period of premarital cohabitation when a couple later divorces. See infra note 27 and accompanying text.
28. Larry L. Bumpass et al., The Role of Cohabitation in Declining Rates of Marriage, 53 J. MARRIAGE & FAM. 913, 917 (1991). Half of cohabiting couples have either married or broken up after one and one-half years. Id.; see also Judith A. Seltzer, Families Formed Outside of Marriage, 62 J. MARRIAGE & FAM. 1247, 1249, 1250-51 (2000).
29. Larry L. Bumpass et al., The Role of Cohabitation in Declining Rates of Marriage, 53 J. MARRIAGE & FAM. 913, 917 (1991). Half of cohabiting couples have either married or broken up after one and one-half years. Id.; see also Judith A. Seltzer, Families Formed Outside of Marriage, 62 J. MARRIAGE & FAM. 1247, 1249, 1250-51 (2000).
30. Larry L. Bumpass et al., The Role of Cohabitation in Declining Rates of Marriage, 53 J. MARRIAGE & FAM. 913, 917 (1991). Half of cohabiting couples have either married or broken up after one and one-half years. Id.; see also Judith A. Seltzer, Families Formed Outside of Marriage, 62 J. MARRIAGE & FAM. 1247, 1249, 1250-51 (2000).
31. Marvin, 557 P.2d at 122. We are aware that many young couples live together without the solem-nization of marriage, in order to make sure that they can successfully later undertake marriage. This trial period, preliminary to marriage, serves as some assurance that the marriage will not subsequently end in dissolution to the harm of both parties. Id. There are many divorce cases that reflect a period of premarital cohabitation. See cases cited infra note 31.
32. See Bumpass et al., supra note 22, at 914-18; Jay D. Teachman et al., The Changing Demography of America's Families, 62 J. MARRIAGE & FAM. 1234, 1235-36 (2000).
33. See Larry Bumpass & Hsien-Hen Lu, Trends in Cohabitation and Implications for Children's Family Contexts in the United States, 54 POPULATION STUD. 29, 33 (2000). To some extent, this is a generational change; the proportion of unmarried unions among younger age cohorts has steadily increased. Bumpass and Lu stress the "dramatic role of cohort replacement as the cohorts on the leading edge of the shift to cohabitation have progressed through the age structure." Id. at 32.
34. See Seltzer, supra note 22, at 1252 ("[T] here is evidence that the inverse relationship between premarital cohabitation and marital stability is diminishing."). Contra Smock, supra note 21, at 13.
35. As summarized by Judith Seltzer: Informal unions dissolve more quickly than do formal marriages because of differences in the quality of the match between partners who marry and those who do not, the strength of normative consensus favoring marriage, the legal and social institutions that support formal marriage over cohabitation, and differences in the attitudes and resources of cohabitors and those who marry. Seltzer, supra note 22, at 1252.
36. See Bumpass & Lu, supra note 25, at 33. These scholars suggest that, "[a]s cohabitation becomes increasingly accepted, cohabitations may include a greater proportion of couples with less serious commitments - who decide to cohabit as a matter of temporary convenience - leading to lower marriage and higher dissolution rates for the population as a whole." Id.; see also Seltzer, supra note 22, at 1250-52; Smock, supra note 21, at 13.
37. U.S. DEP'T OF COMMERCE, 1998 STATISTICAL ABSTRACT OF THE UNITED STATES 111 (1998).
38. According to Bumpass et al., supra note 22, at 918, sixty percent of persons who remarried between 1980 and 1987 had lived with a partner prior to remarrying.
39. E.g., Glasgo v. Glasgo, 410 N.E.2d 1325, 1325-27 (Ind. Ct. App. 1980); Eaton v. Johnston, 681 P.2d 606, 607 (Kan. 1984); Pickens v. Pickens, 490 So. 2d 872, 873-74 (Miss. 1986); Bass v. Bass, 814 S.W.2d 38, 39-41 (Tenn. 1991); Kinnison v. Kinnison, 627 P.2d 594, 594-95 (Wyo. 1981); see also In re Marriage of Bukaty, 225 Cal. Rptr. 492, 494-95 (Ct. App. 1986) (reporting that the married couple cohabited for twentyseven years after their divorce and before their second marriage).
40. See Smock, supra note 21, at 5.
41. See Seltzer, supra note 22, at 1253.
42. For same-sex couples, of course, cohabitation is not evaluated as an alternative to marriage, since same-sex marriage is not an option in the United States.
43. Carol Smart, Stories of Family Life: Cohabitation, Marriage and Social Change, 17 CAN. J. FAM. L. 20, 36 (2000); see also Vivienne Elizabeth, Cohabitation, Marriage and the Unruly Consequences of Difference, 14 GENDER & SOC'Y 87, 87-107 (2000) (reporting a study based on interviews with nineteen cohabiting individuals characterized as "marriage resisters").
44. Carol Smart, Stories of Family Life: Cohabitation, Marriage and Social Change, 17 CAN. J. FAM. L. 20, 36 (2000); see also Vivienne Elizabeth, Cohabitation, Marriage and the Unruly Consequences of Difference, 14 GENDER & SOC'Y 87, 87-107 (2000) (reporting a study based on interviews with nineteen cohabiting individuals characterized as "marriage resisters").
45. Smart, supra note 35, at 36. She contrasts reflexive relationships with "risk relationships," discussed below.
46. See, e.g., Michael D'Antonio, Unmarital Bliss, L.A. TIMES, Apr. 9, 2000, (Magazine) at 20; Karen S, Peterson, Couples Are Less Likely to Choose Marriage, USA TODAY, Apr. 18, 2000, at 1D; Abigail Trafford, Second Opinion: The Case for Marriage Isn't Open and Shut, WASH. POST, Oct. 17, 2000, at Health 1; Rene Wisely, Why Couples Don't Tie the Knot, DETROIT NEWS, Apr. 12, 2000, at Features 1.
47. See, e.g., Michael D'Antonio, Unmarital Bliss, L.A. TIMES, Apr. 9, 2000, (Magazine) at 20; Karen S, Peterson, Couples Are Less Likely to Choose Marriage, USA TODAY, Apr. 18, 2000, at 1D; Abigail Trafford, Second Opinion: The Case for Marriage Isn't Open and Shut, WASH. POST, Oct. 17, 2000, at Health 1; Rene Wisely, Why Couples Don't Tie the Knot, DETROIT NEWS, Apr. 12, 2000, at Features 1.
48. See, e.g., Michael D'Antonio, Unmarital Bliss, L.A. TIMES, Apr. 9, 2000, (Magazine) at 20; Karen S, Peterson, Couples Are Less Likely to Choose Marriage, USA TODAY, Apr. 18, 2000, at 1D; Abigail Trafford, Second Opinion: The Case for Marriage Isn't Open and Shut, WASH. POST, Oct. 17, 2000, at Health 1; Rene Wisely, Why Couples Don't Tie the Knot, DETROIT NEWS, Apr. 12, 2000, at Features 1.
49. See, e.g., Michael D'Antonio, Unmarital Bliss, L.A. TIMES, Apr. 9, 2000, (Magazine) at 20; Karen S, Peterson, Couples Are Less Likely to Choose Marriage, USA TODAY, Apr. 18, 2000, at 1D; Abigail Trafford, Second Opinion: The Case for Marriage Isn't Open and Shut, WASH. POST, Oct. 17, 2000, at Health 1; Rene Wisely, Why Couples Don't Tie the Knot, DETROIT NEWS, Apr. 12, 2000, at Features 1.
50. Smart, supra note 35, at 36. She goes on to observe: "Often it is just hoped that things will work out somehow and actual expectations are left unsaid or are rather. minimal." Id.
51. Id. at 41. Many of these men were unemployed, and there was a significant incidence of domestic violence within this group. Id. at 42. Smart points out that there is also a class dimension to this problem: women who are welfare recipients risk losing important benefits if they marry, suggesting that their caution around marriage is economically rational. Id. at 37.
52. Id. at 45. Even those men in reflexive relationships stressed the value of independence as one reason to choose cohabitation over marriage. Id. at 39.
53. See Marvin v. Marvin, 557 P.2d 106, 117 n.11 (Cal. 1976).
54. Id.; see also Oystein Kravdal, Does Marriage Require a Stronger Economic Underpinning than Informal Cohabitation?, 53 POPULATION STUD. 63, 67 (1999).
55. See ANDREW J. CHERLIN, MARRIAGE, DIVORCE, REMARRIAGE 11-18 (1992); Seltzer, supra note 22, at 1250; see also Kravdal, supra note 42, at 63-80 (reviewing data from Norway). But see Julie Brines & Kara Joyner, The Ties that Bind: Principles of Cohesion in Cohabitation and Marriage, 64 AM. Soc. REV. 333, 341 (1999) (noting that cohabiting and married couples have similar combined earnings during their first year together).
56. See ANDREW J. CHERLIN, MARRIAGE, DIVORCE, REMARRIAGE 11-18 (1992); Seltzer, supra note 22, at 1250; see also Kravdal, supra note 42, at 63-80 (reviewing data from Norway). But see Julie Brines & Kara Joyner, The Ties that Bind: Principles of Cohesion in Cohabitation and Marriage, 64 AM. Soc. REV. 333, 341 (1999) (noting that cohabiting and married couples have similar combined earnings during their first year together).
57. See Teachman et al., supra note 24, at 1237.
58. See Brines & Joyner, supra note 43, at 341, 350-51.
59. See id. at 348-50.
60. See Pamela J. Smock & Wendy D. Manning, Cohabiting Partners' Economic Circumstances and Marriage, 34 DEMOGRAPHY 331, 338 (1997). These authors also report that women's economic circumstances have no apparent effect on the transition from cohabitation to marriage. See id. Bumpass has demonstrated that despite a popular conception that cohabitation is a college student phenomenon, rates of cohabitation have been consistently higher for young people in lower economic classes and lower among better educated segments of the population. Bumpass et al., supra note 22, at 916-17.
61. Teachman et al., supra note 24, at 1236.
62. Id. at 1238. The authors note studies indicating that African-Americans are also less likely to move from cohabitation to marriage. See, e.g., Wendy D. Manning & Pamela J. Smock, Why Marry? Race and the Transition to Marriage Among Cohabitors, 32 DEMOGRAPHY 509, 518 (1995). Note, however, that there is no racial difference in the proportion of couples who have ever cohabited. See Bumpass & Lu, supra note 25, at 32.
63. The difference may result from changes in local marriage markets - a decline in the pool of marriageable men - rather than men's economic position relative to women. Teachman et al., supra note 24, at 1237-38.
64. Bumpass & Lu, supra note 25, at 34-35; see also Seltzer, supra note 22, at 1251-52; Smock, supra note 21, at 13.
65. In 1970, just over ten percent of all births were nonmarital births. U.S. DEP'T OF COMMERCE, 1992 STATISTICAL ABSTRACT OF THE UNITED STATES 828, tbl. 1365 (1992). By 1995 almost one-third were nonmarital. U.S. DEP'T OF COMMERCE, supra note 29, at 81, tbls. 101, 102, 1365.
66. Overall, almost forty percent of all children born to unmarried women from 1990 to 1994 had parents cohabiting at the time of birth. See Bumpass & Lu, supra note 25, at 34-35. There are racial and ethnic differences here as well. For white and Hispanic mothers, the rate was fifty percent or more; for black mothers, the rate was twenty-two percent. See id.
67. See id. at 35.
68. Seltzer, supra note 22, at 1251-52. The presence of children in cohabiting households increases the likelihood that the cohabitants will go on to marry. See Manning & Smock, supra note 49, at 517-18.
69. Statistical data is much more difficult to develop for this group. See generally Dan Black et al., Demographics of the Gay and Lesbian Population in the United States: Evidence from Available Systematic Data Services, 37 DEMOGRAPHY 139 (2000).
70. Seltzer, supra note 22, at 1263.
71. Steven L. Nock, A Comparison of Marriages and Cohabitating Relationships, 16 J. FAM. ISSUES 53, 56-57 (1995); see also PHILIP BLUMSTEIN & PEPPER SCHWARTZ, AMERICAN COUPLES 321-22 (1983).
72. Steven L. Nock, A Comparison of Marriages and Cohabitating Relationships, 16 J. FAM. ISSUES 53, 56-57 (1995); see also PHILIP BLUMSTEIN & PEPPER SCHWARTZ, AMERICAN COUPLES 321-22 (1983).
73. See Brines & Joyner, supra note 43, at 350-51. A couple looking for practical assistance might find advice books in a library or bookstore covering some of the legal, financial, and psychological dimensions of cohabitation. See, e.g., ROSANNE ROSEN, THE COMPLETE IDIOT'S GUIDE TO LIVING TOGETHER (2000). For a particularly detailed legal guide, see TONI LYNNE IHARA ET AL., THE LIVING TOGETHER KIT: A LEGAL GUIDE FOR UNMARRIED COUPLES (10th ed. 2001) (with CD-ROM).
74. See Brines & Joyner, supra note 43, at 350-51. A couple looking for practical assistance might find advice books in a library or bookstore covering some of the legal, financial, and psychological dimensions of cohabitation. See, e.g., ROSANNE ROSEN, THE COMPLETE IDIOT'S GUIDE TO LIVING TOGETHER (2000). For a particularly detailed legal guide, see TONI LYNNE IHARA ET AL., THE LIVING TOGETHER KIT: A LEGAL GUIDE FOR UNMARRIED COUPLES (10th ed. 2001) (with CD-ROM).
75. Brines and Joyner put the point this way: Cohabiting couples are prone to follow the equality principle because of the conditions they confront, high uncertainty, an unspecified time horizon, and the absence of a reliably enforceable contract. These conditions grant couples a certain freedom to experiment with organizational forms that are less responsive to external norms or contractual obligations and more responsive to the needs of each partner. This freedom, however, comes with the loss of incentives to invest jointly in the relationship and of clear cultural guidelines for how partners might conduct themselves once they set up a household. Brines & Joyner, supra note 43, at 350-51; see also Seltzer, supra note 22, at 1253-54 (noting that couples who cohabit have more liberal gender-role attitudes).. But see Smock, supra note 21, at 14 (noting that cohabiting and married couples are not different in their division of household labor and that women "perform the vast majority of housework in both contexts").
76. See Brines & Joyner, supra note 43, at 351.
77. See W. States Constr., Inc. v. Michoff, 840 P.2d 1220, 1222 (Nev. 1992); Connell v. Francisco, 898 P.2d 831, 835-36 (Wash. 1995).
78. See Eaton v. Johnston, 681 P.2d 606, 610-11 (Kan. 1984); Pickens v. Pickens, 490 So. 2d 872, 875-76 (Miss. 1986); Shuraleff v. Donnelly, 817 P.2d 764, 768-69 (Or. Ct. App. 1991).
79. See Marvin v. Marvin, 557 P.2d 106, 110 (Cal. 1976); Goode v. Goode, 396 S.E.2d 430, 439 (W. Va. 1990); Watts v. Watts, 405 N.W.2d 303, 313-14 (Ws. 1987). Decisions in Nevada and Oregon, predating the cases cited in the two preceding notes, indicated support for this kind of generous view of implied contract principles. See Hay v. Hay, 678 P.2d 672, 675 (Nev. 1984); Beal v. Beal, 577 P.2d 507, 510 (Or. 1978).
80. A number of California cases have denied recovery to individuals in long-term relationships who did not share a household, on the basis that there was no consideration for any implied or express contracts. See Bergen v. Wood, 18 Cal. Rptr. 2d 75, 79 (Ct. App. 1993) (reversing the award to a plaintiff who did not live with the defendant and who could not show any consideration independent of the sexual relationship); Taylor v. Fields, 224 Cal. Rptr. 186, 194 (Ct. App. 1986) (approving summary judgment in a case brought against the wife of a deceased lover after forty-two year relationship). The requirement of cohabitation was not applied to a partition case where a dating couple acquired real property together and terminated their relationship without ever marrying. Milian v. DeLeon, 226 Cal. Rptr. 831, 835 (Ct. App. 1986). The recovery in Milian is better explained by the principles outlined infra at text accompanying notes 62 to 64. These cases frequently involve couples who held themselves out as married, and a number of them describe relationships in which the parties were married, then divorced, and then resumed cohabitation without marrying a second time. See cases cited supra note 63. In some cases, courts seem influenced by the fact that one or both of the cohabiting individuals is married to someone else. See, e.g., Thomas v. LaRosa, 400 S.E.2d 809, 811-14 (W. Va. 1990).
81. Vasquez v. Hawthorne, 994 P.2d 240, 242-43 (Wash. Ct. App. 2000), appeal docketed, 11 P.3d 825 (Wash. 2000). The court did suggest, however, that Vasquez could make a claim based on constructive trust or implied partnership theories. See id. at 242-43. This is consistent with practice in many jurisdictions in which courts apply the rules outlined in the text below to same-sex as well as opposite-sex cohabitants. See, e.g., Bramlett v. Selman, 597 S.W.2d 80, 85 (Ark. 1980) (constructive trust); Weekes v. Gay, 256 S.E.2d 901, 904 (Ga. 1979) (implied trust); Ireland v. Flanagan, 627 P.2d 496, 500 (Or. Ct. App. 1981) (implied contract to hold title as cotenants); Mitchell v. Moore, 729 A.2d 1200, 1206 (Pa. Super. Ct. 1999) (unjust enrichment); Doe v. Roe, 475 S.E.2d 783, 787 (S.C. Ct. App. 1996) (constructive trust); Small v. Harper, 638 S.W.2d 24, 26-27 (Tex. App. 1982) (constructive trust).
82. See Thomas, 400 S.E.2d at 814-15 (rejecting a claim for support); Goode v. Goode, 396 S.E.2d 430, 439 n.16 (W. Va. 1990) (allowing an implied contract claim for property distribution); see also Pickens, 490 So. 2d at 875 (citing Taylor v. Taylor, 317 So. 2d 422 (Miss. 1975)). But see Byrne v. Laura, 60 Cal. Rptr. 2d 908, 913-16 (Ct. App. 1997) (allowing cohabiting partner to enforce promises for support against the other partner's estate). Some cases distinguish Marvin as a case involving a claim for "palimony," that is ongoing support payments. E.g., Glasgo, 410 N.E.2d at 1327.
83. E.g., Eaton, 681 P.2d at 610; Pickens, 490 So. 2d at 875-76.
84. E.g., Pickens, 490 So. 2d at 876; Wilbur v. DeLapp, 850 P.2d 1151, 1153 (Or. Ct. App. 1993).
85. In Kansas, courts sometimes invoke this equitable authority as basis for relief where the parties have failed to prove the existence of a common-law marriage. See In re Marriage of Thomas, 825 P.2d 1163, 1165-67 (Kan. Ct. App. 1992); Eaton, 681 P.2d at 610-611. Both of these cases involved formerly married couples who resumed cohabitation after being divorced.
86. Wallender v. Wallender, 870 P.2d 232, 234 (Or. Ct. App. 1994). This is consistent with the suggestion in Marvin that courts might divide property "in accord with the parties' own tacit understanding and that in the absence of such understanding the courts [may] fairly apportion property accumulated through mutual effort." Marvin v. Marvin, 557 P.2d 106, 121 (Cal. 1976), quoted in Alderson v. Alderson, 225 Cal. Rptr. 610, 615 (Ct. App. 1986).
87. Wallender, 870 P.2d at 234; see also Pinto v. Smalz, 955 P.2d 770, 773 (Or. Ct. App. 1998) (noting that no one of these factors is dispositive); Ireland v. Flanagan, 627 P.2d 496, 499-500 (Or. Ct. App. 1981) (applying the same rule to a cohabiting same-sex couple).
88. Compare Wilbur, 850 P.2d at 1151 ("There is no evidence that this financial arrangement was not agreeable to both parties."), with Wallender, 870 P.2d at 234-35 ("[P]laintiff knew that defendant did not intend to share his ownership of the farm after the dissolution."). In Shurakff v. Donnelly, 817 P.2d 764, 768 (Or. Ct. App. 1991), the court refused to give effect to one party's evident intention not to share property where the other party thought the finances involved "just one pot."
89. See Alderson v. Alderson, 225 Cal. Rptr. 610, 615 (Ct. App. 1986); Goode v. Goode, 396 S.E.2d 430, 438 (W. Va. 1990); Watts v. Watts, 405 N.W.2d 303, 313 (Wis. 1987) (citing Beal v. Beal, 577 P.2d 507, 510 (Or. 1987)). In Taylor v. Polackwich, 194 Cal. Rptr. 8 (Ct. App. 1983), the appellate court reversed a "rehabilitative" property and support award made by the trial court after a jury had concluded there was no implied agreement to acquire property jointly. Id. at 11-12. During their eight-year cohabitation, Joseph supported Janina and her seven children. Id. at 10. Janina earned some income and received welfare payments; she paid $205 a month as "rent" to Joseph and got receipts for these payments to show the welfare department. Id.
90. The division of property is somewhat different than what would be ordered in a divorce case. Property acquired during a meretricious relationship is presumed to belong to both parties, without regard to who holds due. See Connell v. Francisco, 898 P.2d 831, 836 (Wash. 1995). Only property acquired during the relationship may be considered for distribution. See id. It need not be equally divided. See In re Meretricious Relationship of Sutton and Widner, 933 P.2d 1069, 1071 (Wash. Ct. App. 1997) (sustaining an award to a cohabitant of thirty-six percent of accumulated assets based on her share of the parties' combined annual income). The courts in meretricious relationship cases confront the usual complexities of community property distribution, however, including commingling and tracing questions, see Koher v. Morgan, 968 P.2d 920, 921-22 (Wash. Ct. App. 1998), and valuation of professional goodwill, see Chesterfield v. Nash, 978 P.2d 551, 555-56 (Wash. Ct. App. 1999), rev'd on other grounds sub nom. In re Marriage of Pennington, 14 P.3d 764 (Wash. 2000).
91. Connell, 898 P.2d at 834 (citing In re Marriage of Lindsey, 678 P.2d 328 (Wash. 1984)).
92. Id.
93. In re Marriage of Pennington, 14 P.3d 764, 773 (Wash. 2000).
94. Id. at 771-72.
95. Vasquez v. Hawthorne, 994 P.2d 240, 243 (Wash. Ct. App. 2000).
96. Courts in many of the cohabitation cases, beginning with Marvin, are careful to acknowledge that common-law marriage has been abolished in their state. E.g., Marvin v. Marvin, 557 P.2d 106, 122 n.24 (Cal. 1976). For the court in Illinois, the abolition of common-law marriage was presented as a significant factor barring recognition of any legal or equitable claims between cohabitants. See Hewitt v. Hewitt, 394 N.E.2d 1204, 1209-10 (Ill. 1979). On the history of common-law marriage and its abolition, see MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA 83-102 (1985).
97. Common-law marriages may still be contracted in Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah.
98. See HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 45-54 (2d ed. 1988). Recovery as a common-law spouse requires proof that both members of the couple were free to marry and that they had a present intention to be married. Id.
99. See HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 45-54 (2d ed. 1988). Recovery as a common-law spouse requires proof that both members of the couple were free to marry and that they had a present intention to be married. Id.
100. Marvin, 557 P.2d at 114; see id. at 111-15.
101. See Vallera v. Vallera, 134 P.2d 761, 736 (Cal. 1943); Trutalli v. Meraviglia, 12 P.2d 430, 431-32 (Cal. 1932); see also Heatwole v. Stansbury, 33 So. 2d 196, 197 (La. 1947); Baxter v. Wilburn, 190 A. 773, 774 (Md. 1937). These rules were revisited by other courts in other states in the early 1970s, and those courts reached similar conclusions. See, e.g., Green v. Richmond, 337 N.E.2d 691, 695-96 (Mass. 1975); Tyranski v. Piggins, 205 N.W.2d 595, 597 (Mich. Ct. App. 1973); Latham v. Latham, 547 P.2d 144, 146-47 (Or. 1976).
102. See Boland v. Catalano, 521 A.2d 142, 145-46 (Conn. 1987) (including citations); see also Cook v. Cook, 691 P.2d 664, 668 (Ariz. 1984); Wilcox v. Trautz, 693 N.E.2d 141, 146 (Mass. 1998); Carlson v. Olson, 256 N.W.2d 249, 252 (Minn. 1977); Kozlowski v. Kozlowski, 403 A.2d 902, 906 (N.J. 1979); Morone v. Morone, 413 N.E.2d 1154, 1156-57 (N.Y. 1980); Watts v. Watts, 405 N.W.2d 303, 308 (Wis. 1987). Contra Rehak v. Mathis, 238 S.E.2d 81, 82 (Ga. 1977); Hewitt, 394 N.E.2d at 1206. See generally George L. Blum, Annotation, Property Rights Arising from Relationship of Couple Co-habiting Without Marriage, 69 A.L.R.5th 219 (1999). Although they are rare, there are cases decided after Marvin in which the validity of the consideration for a cohabitation agreement was seriously considered. Compare Jones v. Daly, 176 Cal. Rptr. 130, 133 (Ct. App. 1981) (finding sexual services an inseparable part of the consideration), with Whorton v. Dillingham, 248 Cal. Rptr. 405, 409-10 (Ct. App. 1988) (finding sexual relationship severable from the remainder of the contract).
103. MINN. STAT. ANN. §§ 513.075-.076 (West 1990), applied in Roatch v. Puera, 534 N.W.2d 560 (Minn. Ct. App. 1995); TEX. Bus. & COM. CODE ANN. § 26.01 (b) (3) (Vernon 1987), applied in Zaremba v. Cliburn, 949 S.W.2d 822 (Tex. App. 1997).
104. Cases addressing written agreements include Wilcox, 693 N.E.2d at 147-48 (settlement agreement entered into by cohabitants after a twenty-five year relationship); Silver v. Starrett, 674 N.Y.S.2d 915, 919-20 (N.Y. Sup. Ct. 1998) (settlement agreement entered into by a lesbian couple at the end of a fourteen year cohabitation); Baldassari v. Baldassari, 420 A.2d 556, 559-60 (Pa. Super. Ct. 1980) (agreement regarding use of real estate); and Harman v. Rogers, 510 A.2d 161, 166 (Vt. 1986) (agreement to own and develop a residential apartment building).
105. See supra text accompanying note 8.
106. See Morone, 413 N.E.2d at 1156; see also Wilcox, 693 N.E.2d at 144-46; Merrill v. Davis, 673 P.2d 1285, 1286 (N.M. 1983).
107. Hudson v. DeLonjay, 732 S.W.2d 922, 928 (Mo. Ct. App. 1987) (citing Boland, 521 A.2d at 144; Cook, 691 P.2d at 667; and Kozlowski, 403 A.2d at 906). This boundary is particularly important in states such as New York and Massachusetts, in which courts enforce express, but not implied, contracts between cohabitants.
108. Cook v. Cook, 691 P.2d 664, 667 (Ariz. 1984). Other cases in which courts have found express oral agreements include Donovan v. Scuderi, 443 A.2d 121, 125-26 (Md. Ct. Spec. App. 1982); Kinkenon v. Hue, 301 N.W.2d 77, 80-81 (Neb. 1981); and Knauer v. Knauer, 470 A.2d 553, 558 (Pa. Super. Ct. 1983).
109. The most dramatic example of this tendency is Illinois, where the Hewitt case rejected the Marvin decision in sweeping terms. Hewitt v. Hewitt, 394 N.E.2d 1204, 1209 (Ill. 1979). Despite Hewitt, the Illinois Court of Appeals approved relief for cohabitants in a number of cases on a constructive trust theory. See Kaiser v. Strong, 735 N.E.2d 144, 148-49 (Ill. App. Ct. 2000); Spafford v. Coats, 455 N.E.2d 241, 244 (Ill. App. Ct. 1983).
110. E.g., Carroll v. Lee, 712 P.2d 923, 926-27 (Ariz. 1986) (partition of jointly titled real and personal property); Libby v. Lorrain, 430 A.2d 37, 38-39 (Me. 1981). (partition of jointly titled real estate); Carlson v. Olson, 256 N.W.2d 249, 255 (Minn. 1977) (partition of real and personal property); Beal v. Beal, 577 P.2d 507, 510-11 (Or. 1978) (determining parties' respective rights as cotenants). Some cases turn on the specific form in which title is held. E.g., Jones v. Green, 337 N.W.2d 85, 85-87 (Mich. Ct. App. 1983) (refusing to partition property because title was held as joint tenants with right of survivorship). A number of cases involve property held by cohabitants as if they were married. E.g., Estate of Wilson, 740 S.W.2d 694, 697 (Mo. Ct. App. 1987) (ruling that property jointly held by unmarried persons is held in tenancy in common unless joint tenancy is proved by evidence other than the fact that property was erroneously titled as if the couple were married); Brazell v. Meyer, 600 P.2d 460, 462-63 (Or. Ct. App. 1979); see also Diedricks v. Reinhardt, 466 So. 2d 375, 377 (Fla. Dist. Ct. App. 1985) (ruling that the widow of a male cohabitant/cotenant was entitled to an accounting from the female cohabitant/cotenant).
111. E.g., Carlson, 256 N.W.2d at 255; Kinkenon, 301 N.W.2d at 79-80; see also Wade v. Porreca, 472 N.Y.S.2d 482, 484 (N.Y. App. Div. 1984) (concluding that the parties must have intended to share earnings as well as expenses based on evidence of how the parties handled bank accounts).
112. See Bramlett v. Selman, 597 S.W.2d 80, 84-85 (Ark. 1980) (imposing constructive trust where one cohabitant placed funds for a down payment in the other cohabitant's name); Alderson v. Alderson, 225 Cal. Rptr. 610, 615-17 (Ct. App. 1986) (implied contract theory); Edwards v. Miller, 378 N.E.2d 583, 586-87 (Ill. App. Ct. 1978) (imposing a constructive trust after the defendant pressured the plaintiff to transfer her interest to him); Sullivan v. Rooney, 533 N.E.2d 1372, 1374 (Mass. 1989) (imposing a constructive trust based on the promise to convey joint title); Estate of Eriksen, 337 N.W.2d 671, 674 (Minn. 1983) (imposing a constructive trust where the parties intended joint ownership); Hay v. Hay, 678 P.2d 672, 674 (Nev. 1984) (involving an implied agreement to hold property as if married); Small v. Harper, 638 S.W.2d 24, 26-27 (Tex. App. 1982) (allowing cohabitant's claim to proceed based on constructive trust and oral partnership); cf. Collins v. Guggenheim, 631 N.E.2d 1016, 1017 (Mass. 1994) (holding no claim for constructive trust without a showing of fraud, breach of fiduciary duty, or other misconduct); Kohler v. Flynn, 493 N.W.2d 647, 649 (N.B. 1992) (holding that cohabitation is not a sufficient basis for partition without evidence of intent to own property jointly); Doe v. Roe, 475 S.E.2d 783, 786-87 (S.C. Ct. App. 1996) (same). A few of the constructive trust cases involve facts that are closer to the implied contract theory recognized in Marvin. See, e.g., Estate of Eriksen, 337 N.W.2d at 674; Williams v. Lynch, 666 N.Y.S.2d 749, 751-52 (N.Y. App. Div. 1997) (allowing the claim for constructive trust where the cohabitant's money and effort were used to improve the partner's property). In both of these states, however, recovery on an implied contract theory would not have been available.
113. See Weekes v. Gay, 256 S.E.2d 901, 904 (Ga. 1979) (imposing a constructive trust where the cohabitant furnished funds to purchase property); Kaiser v. Strong, 735 N.E.2d 144, 145-46 (Ill. App. Ct. 2000) (allowing recovery for "money had and received" where the plaintiff gave the defendant more than $47,000 to pay off the mortgage balance); Lawlis v. Thompson, 405 N.W.2d 317, 322 (Wis. 1987) (ordering restitution of $65,000 transferred to the cohabitant to pay for real estate, farm equipment, and divorce settlement); see also Saporta v. Saporta, 766 So. 2d 379, 380-81 (Fla. Dist. Ct. App. 2000) (applying constructive principles to award to the wife a home purchased with her funds during cohabitation prior to marriage and which had been titled in husband's name to prove that he would be the head of their household).
114. E.g., Salzman v. Bachrach, 996 P.2d 1263, 1266 (Colo. 2000) (investment of $170,000 toward the cost of constructing a new residence); Kaiser, 735 N.E.2d at 147 ($47,000 to pay off the mortgage balance); Spafford v. Coats, 455 N.E.2d 241, 245 (Ill. App. Ct. 1983) (the plaintiff furnished "substantially all" of the consideration for four vehicles owned by the defendant); Estate of Palmen, 588 N.W.2d 493, 496 (Minn. 1999) (investment of $17,000 in materials and $30,000 in labor for construction of a cabin); Collins v. Davis, 315 S.E.2d 759, 761 (N.C. Ct. App. 1984) (money loaned for purchase and improvement of real estate); see also Ward v. Jahnke, 583 N.W.2d 656, 661 (Wis. Ct. App. 1998) (involving one cohabitant who paid the parties' living expenses for three and a half years, allowing the other to save $11,000 for the down payment on his house).
115. E.g., Ayala v. Fox, 564 N.E.2d 920, 922 (Ill. 1990) (denying recovery based on contributions to mortgage payments).
116. E.g., Hudson v. DeLonjay, 732 S.W.2d 922, 927-29 (Mo. Ct. App. 1987); W. States Constr., Inc. v. Michoff, 840 P.2d 1220, 1224-25 (Nev. 1992); Lee v. Slovak, 440 N.Y.S.2d 358, 360 (N.Y. App. Div. 1981); Bass v. Bass, 814 S.W.2d 38, 43 (Tenn. 1991); cf. Maglica v. Maglica, 78 Cal. Rptr. 2d 101, 105-06 (Ct. App. 1998) (holding that a cohabitant who invested services but no property in the business was entitled only to restitution for the value of services). In a series of cases, the Oregon Court of Appeals has granted equity interests in property to cohabitants who were active partners in a business conducted on the property, based on "general equitable principles." See Raimer v. Wheeler, 849 P.2d 1122, 1123 (Or. Ct. App. 1993); Wilkinson v. Higgins, 844 P.2d 266, 268-69 (Or. Ct. App. 1993); Shuraleff v. Donnelly, 817 P.2d 764, 768 (Or. Ct. App. 1991).
117. Some cases permit recovery for housekeeping services on a quantum meruit basis, particularly if the plaintiff was hired on this basis before the cohabitation relationship began. See, e.g., Estate of Steffes, 290 N.W.2d 697, 704-08 (Wis. 1980). Traditionally, restitution has not been available for housework performed by a household member based on a presumption that such services are gratuitously provided. See generally Carol S. Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers' Services, 10 FAM. L.Q. 101 (1976).
118. See, e.g., Maglica, 78 Cal. Rptr. 2d at 103; Humiston v. Bushnell, 394 A.2d 844, 845 (N.H. 1978); Suggs v. Norris, 364 S.E.2d 159, 162-63 (N.C. Ct. App. 1988); Harman v. Rogers, 510 A.2d 161, 165 (Vt. 1986).
119. See, e.g., Salzman, 996 P.2d at 1266; Mason V. Rostad, 476 A.2d 662, 666 (D.C. 1984).
120. See Marvin v. Marvin, 557 P.2d 106, 120-21 (Cal. 1976); see also Watts v. Watts, 405 N.W.2d 303, 305-06, 307-09 (Wis. 1987). As noted above, however, these principles are now applied to cohabiting couples in several states "by analogy." See supra text accompanying note 62.
121. See, e.g., Boland v. Catalano, 521 A.2d 142, 145 (Conn. 1987); Aehegma v. Aehegma, 797 P.2d 74, 79 (Haw. Ct. App. 1990); Glasgo v. Glasgo, 410 N.E.2d 1325, 1331-32 (Ind. Ct. App. 1980); Davis v. Davis, 643 So. 2d 931, 932 (Miss. 1994); Martin v. Coleman, 19 S.W.3d 757, 760-61 (Tenn. 2000). Cohabitants have sought to recover on the basis of implied agreements to share earnings, but recovery on this basis is relatively rare beyond those states described supra in notes 62 to 64 and accompanying text.
122. Maglica, 78 Cal. Rptr. 2d 101.
123. Id. at 103.
124. Id. at 103-04. Claire argued that they had an implied contract to share the equity of the business. This claim was rejected by the jury, but the court of appeals held that the jury was not properly instructed and remanded this aspect of the case. See id. at 108-10. The Maglicas settled their dispute for $29,000,000 midway through the second trial. See Marosi, supra note 15, at B1.
125. See Maglica, 78 Cal. Rptr. 2d at 102.
126. Id.
127. See, e.g., Maria v. Freitas, 832 P.2d 259, 274-75 (Haw. 1992); Bright v. Kuehl, 650 N.E.2d 311, 315 (Ind. Ct. App. 1995); Carnes v. Sheldon, 311 N.W.2d 747, 759 (Mich. Ct. App. 1981); Tarry v. Stewart, 649 N.E.2d 1, 6-7 (Ohio Ct. App. 1994); Seward v. Mentrup, 622 N.E.2d 756, 757 (Ohio Ct. App. 1993); Mitchell v. Moore, 729 A.2d 1200, 1206 (Pa. Super. Ct. 1999). As noted above, these services may be the basis for finding an implied contract of some sort in a few states. See supra notes 64-66 and accompanying text.
128. Murphy v. Bowen, 756 S.W.2d 149, 151 (Ky. Ct. App. 1988); see also Tapley v. Tapley, 449 A.2d 1218, 1219-20 (N.H. 1982); Kozlowski v. Kozlowski, 395 A.2d 913, 919 (N.J. 1978); Morone v. Morone, 429 N.Y.S.2d 592, 595 (N.Y. 1980).
129. Slocum v. Hammond, 346 N.W.2d 485, 491-92 (Iowa 1984).
130. See, e.g., Pyeatte v. Pyeatte, 661 P.2d 196, 207 (Ariz. Ct. App. 1982) ("[T]He courts cannot and will not strike a balance regarding the contributions of each to the marriage and then translate that into a monetary award."); Mahoney v. Mahoney, 453 A.2d 527, 533 (N.J. 1982) ("Marriage is not a business arrangement in which the parties keep track of debits and credits, their accounts to be settled upon divorce.").
131. 583 N.W.2d 656 (Wis. Ct. App. 1998).
132. See id. at 661-62.
133. See generally Grace Ganz Blumberg, Cohabitation Without Marriage: A Different Perspective, 28 UCLA L. REV. 1125 (1981); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677 (1984).
134. See generally Grace Ganz Blumberg, Cohabitation Without Marriage: A Different Perspective, 28 UCLA L. REV. 1125 (1981); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677 (1984).
135. See Califano v. Boles, 443 U.S. 282, 296 (1979). See generally Blumberg, supra note 117, at 1144-49. As Blumberg points out, many of these programs do take unmarried cohabitation into account for the purpose of reducing or eliminating benefits, id. at 1138, and cohabitation is also used to reduce or deny benefits under programs like AFDC, see id. at 1153-57.
136. See Norman v. Unemployment Ins. Appeals Bd., 663 P.2d 904, 905 (Cal. 1983) (unemployment insurance); Beaty v. Truck Ins. Exch., 8 Cal. Rptr. 2d 593, 596-97 (Ct. App. 1992) (liability insurance); Dep't of Indus. Relations v. Workers' Comp. Appeals Bd., 156 Cal. Rptr. 183, 185 (Ct. App. 1979) (workers' compensation.); see also Blumberg, supra note 117, at 1140-44.
137. See Eiden v. Sheldon, 758 P.2d 582, 594 (Cal. 1988) (no claim for emotional distress or loss of consortium); Nieto v. City of Los Angeles, 188 Cal, Rptr. 31, 33 (Ct. App. 1982) (no claim for wrongful death).
138. See People v. Delph, 156 Cal. Rptr. 422, 425 (Ct. App. 1979).
139. See Blumberg, supra note 117, at 1157-59.
140. PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION § 6 (Tentative Draft No. 4, 2000) [hereinafter ALI PRINCIPLES].
141. The ALI Principles define "domestic partners" as two persons of the same or opposite sex, not married to each other, "who for a significant period of time share a primary residence and a life together as a couple." Id. § 6.01 (1). This determination is made under principles that are elaborated in § 6.03. Id. § 6.03. Where parties qualify as domestic partners, most of the rules governing property and support rights of married couples are made applicable under §§ 6.04-.06. Domestic partners would be governed by these rules unless they reached an agreement otherwise. See id. § 6.01.
142. See id. § 6.01 (1).
143. See, e.g., Hewitt v. Hewitt, 394 N.E.2d 1204, 1205 (Ill. 1979); Goode v. Goode, 396 S.E.2d 430, 432 (W. Va. 1990); Watts v. Watts, 405 N.W.2d 303, 305 (Wis. 1987).
144. See sources cited supra note 51.
145. See, e.g., UNIF. MARRIAGE AND DIVORCE ACT § 307 [Alternative B], 9A U.L.A. 288-89 (Part 1) (1998) (directing the court deciding property division to consider "the desirability of awarding the family home or the right to live therein for a reasonable period to the spouse having custody of any children"); id. § 308(a) (2), 9A U.L.A. 446 (authorizing the court to grant a maintenance order to a spouse who is "the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home"). For an argument that these policies should be given greater weight in divorce proceedings, see generally Ann Laquer Estin, Maintenance, Alimony, and the Rehabilitation of Family Care, 71 N.C. L. REV. 721 (1993).
146. See ALI PRINCIPLES, supra note 123, §§ 6.05-.06 (providing for allocation of property and "compensatory payments" for domestic partners on the same basis as married individuals).
147. This issue has been litigated primarily by same-sex couples, and courts in some jurisdictions have permitted "second parent adoptions" in these cases. See, e.g., In re Jacob, 660 N.E.2d 397, 405-06 (N.Y. 1995); Adoption of B.L.V.B., 628 A.2d 1271, 1276 (Vt. 1993). See generally Sonja Larsen, Annotation, Adoption of Child by Same-Sex Partners, 27 A.L.R.5th 54 (1995). In New York, the rule extends to opposite-sex cohabiting couples as well. See In re Jacob, 660 N.E.2d at '405.
148. See Laurence C. Nolan, Legal Strangers and the Duty of Support: Beyond the Biological Tie - But How Far Beyond the Marital Tie?, 41 SANTA CLARA L. REV. 1, 35-37 (2000).
149. When cohabiting couples have biological children together, both parents have parental rights and obligations with respect to those children. Several recent cases have concluded that a cohabiting partner without a biological tie to his partner's child cannot establish parental rights, even if he believed himself to be and acted as a parent for the child. See Petition of Ash, 507 N.W.2d 400, 404-05 (Iowa 1993); Van v. Zahorik, 597 N.W.2d 15, 23 (Mich. 1999); Price v. Howard, 484 S.E.2d 528, 537 (N.C. 1997). But see W. v. W., 728 A.2d 1076, 1087 (Conn. 1999) (holding mother's cohabitant equitably estopped from denying paternity). By contrast, a married man who is not the biological father of his wife's child is often treated as the child's "equitable parent" and may be estopped from denying paternity. See, e.g., In re Gallagher, 539 N.W.2d 479, 483 (Iowa 1995). See generally Alan Stephens, Annotation, Parental Rights of Man Who Is Not Biological or Adoptive Father of Child But Was Husband or Cohabitant of Mother When Child Was Conceived or Born, 84 A.L.R.4th 655 (1991). Some state statutes permit a cohabitant without a legal or biological tie to a child to seek visitation. E.g., WASH. REV. CODE ANN. §§ 26.09.160, 26.09.240 (West 1997), discussed in In re Wolcott, 933 P.2d 1066, 1068-69 (Wash. Ct. App. 1997) (denying visitation), aff'd in part and rev'd in part, 969 P.2d 21, 27 (Wash. 1998). There is a constitutional question as to how broadly these statutes may be applied following the Supreme Court's ruling in Troxel v. Grainville, 530 U.S. 57 (2000).
150. Section 2.03(1) defines "parent" to include a legal parent, a parent by estoppel, and a de facto parent. ALI PRINCIPLES, supra note 123, § 2.03(1). A "parent by estoppel" is defined as an individual who has lived with a child for at least two years and acted as a parent in circumstances that serve to estop the legal parent from contesting the individual's status as a parent. Id. § 2.03(1) (b). "De facto parent" is defined as an adult who has resided with the child for a significant period of time and who has regularly performed either a majority of the caretaking functions for the child or a share of the caretaking at least as great as that of the parent with whom the child has lived primarily. Id. § 2.21 (setting out the circumstances in which parental responsibilities could be allocated to parents by estoppel and de facto parents). Although the definition of a de facto parent is designed to be a narrow one that few individuals who are not legal parents will be able to satisfy, this rule and the rule governing parents by estoppel make no distinction between adults married to a child's legal parent and other adults. See id. at xxxvi-xxxviii.
151. In California, a married person who wants to make financial claims based on a period of premarital cohabitation is required to bring "a Marvin action" in addition to the divorce proceeding. See Watkins v. Watkins, 192 Cal. Rptr. 54, 55-56 (Ct. App. 1983); see also Rolle v. Rolle, 530 A.2d 847, 851-52 (N.J. Super. Ct. App. Div. 1987) (allowing for equitable remedies to divide assets acquired by one spouse during the period of premarital cohabitation); In re Marriage of Lindsey, 678 P.2d 328, 332 (Wash. 1984) (requiring that courts make equitable disposition of property acquired during the premarital relationship).
152. See, e.g., David L. Chambers, The "Legalization" of the Family: Toward a Policy of Supportive Neutrality, 18 U. MICII.J.L. REFORM 805, 826 (1985). But see Blumberg, supra note 117, at 1167-70.
153. These are the "risk relationships" described supra at text accompanying note 38.
154. See supra notes 51-55 and accompanying text.
155. See supra notes 41-50 and accompanying text.
156. See MODEL PENAL CODE § 213.6 note on Adultery and Fornication (1962). At the time the court made its ruling in Marviri, California had recently abolished its criminal statute prohibiting adulterous cohabitation. See Marvin v. Marvin, 557 P.2d 106, 112 n.4 (Cal. 1976); see also In re Estate of Steffes, 290 N.W.2d 697, 708-09 (Wis. 1980). See generally Martha L. Fineman, Law and Changing Patterns of Behavior: Sanctions on Non-marital Cohabitation, 1981 Wis. L. REV. 275, 276-77 (1981). A number of states still have these laws on the books, but they are rarely enforced. See Commonwealth v. Stowell, 449 N.E.2d 357, 361 (Mass. 1983) (holding that the adultery statute was constitutional and could be applied to private consensual acts between adults). See generally Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660 (1991).
157. See MODEL PENAL CODE § 213.6 note on Adultery and Fornication (1962). At the time the court made its ruling in Marviri, California had recently abolished its criminal statute prohibiting adulterous cohabitation. See Marvin v. Marvin, 557 P.2d 106, 112 n.4 (Cal. 1976); see also In re Estate of Steffes, 290 N.W.2d 697, 708-09 (Wis. 1980). See generally Martha L. Fineman, Law and Changing Patterns of Behavior: Sanctions on Non-marital Cohabitation, 1981 Wis. L. REV. 275, 276-77 (1981). A number of states still have these laws on the books, but they are rarely enforced. See Commonwealth v. Stowell, 449 N.E.2d 357, 361 (Mass. 1983) (holding that the adultery statute was constitutional and could be applied to private consensual acts between adults). See generally Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660 (1991).
158. 405 U.S. 438 (1972).
159. See id. at 454-55.
160. Stanley v. Illinois, 405 U.S. 645, 658 (1972); see also Lehr v. Robertson, 463 U.S. 248, 267 (1983); Caban v. Mohammed, 441 U.S. 380, 394 (1979); Quilloin v. Walcott, 434 U.S. 246, 256 (1978). Although it was not the basis for the Court's holding, it is worth noting that in these cases only those fathers who lived together with their partner and the nonmarital child were extended constitutionally recognized parental rights. Compare Stanley and Caban (protecting parental rights) with Quilloin and Lehr (refusing protection).
161. Levy v. Louisiana, 391 U.S. 68, 88 (1968).
162. See Marvin v. Marvin, 557 P.2d 106, 122 (Cal. 1976).
163. Id. Lest we be misunderstood, however, we take this occasion to point out that the structure of society itself largely depends upon the institution of marriage, and nothing we have said in this opinion should be taken to derogate from that institution. The joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime. Id. at 122.
164. See, e.g., Norman v. Unemployment Ins. Appeals Bd., 663 P.2d 904, 907-08 (Cal. 1983); People v. Delph, 156 Cal. Rptr. 422, 424-25 (Ct. App. 1979) (denying the marital communication privilege to unmarried cohabitants).
165. See supra text accompanying note 20.