Ed: Welcome to FreeDivorce.com
Christina: This is Christina.
Ed: This is Ed. Today, we are going to talk about cohabitation. In a prior video, #74, we discussed the reasons why people get divorced. In that video, I gave some advice for people contemplating marriage, including a recommendation that a couple live together for at least a year before getting married.
Christina: In today’s video, we are going to answer the question: What legal obligations, if any, arise under California law if you decide to move in and live with your girlfriend or boyfriend? Also, we will talk about what rights you may have if you live with someone outside of marriage for a substantial period of time and then the relationship ends.
Ed: We need to start by making a distinction between a couple simply living together, which many people call “cohabitation”, versus a formal “Domestic Partnership”. In 2005, the “Domestic Partner Rights and Responsibilities Act” went into effect in California. Under this Act, two people can become legal domestic partners by filing a “Declaration of Domestic Partnership” with the California Secretary of State. Domestic Partners who are registered with the Secretary of State, have almost all of the same legal rights, protections and benefits, as well as all of the same responsibilities, that California law grants to, and imposes upon, married couples. A couple that registers as domestic partners with the Secretary of State will be subject to the same community property laws, child custody laws, child support laws, and alimony laws, as though they were married. Same sex couples, as well as certain opposite sex couples, can be registered domestic partners. There is a lot to know about domestic partnerships. We will soon upload a new video on that topic. However, today’s video is about the more common scenario where a couple simply decides to live together.
Christina: Ed, let’s say I move in with my boyfriend and we live together for a period of years and we have children together, at some point do we have a common-law marriage?
Ed: Living together in California will not create a common-law marriage. It does not matter how long you live together or how many children you may or may not have. Simply living together does not create a marriage. Common-law marriages have been abolished in most states in the United States. However, there are still a handful of states that do recognize common-law marriages. Those states include Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, and the District of Colombia. If you live in one of those states for a sufficient period of time to satisfy the requirements for a common-law marriage and then later move to California, California will recognize that you are validly married.
Christina: Getting back to cohabitation in California, if I decide to live with my boyfriend for a period of years, will he somehow acquire an interest in my earnings, pension or other property? Also, if we break up, will I have to pay him alimony or pal-alimony?
Ed: Under California law, property rights and rights to alimony are based on the existence of a valid marriage or a valid registered domestic partnership. Merely living together does not confer rights to property or support on either party.
Christina: So, if I simply live with my boyfriend, rather than marrying him, I don’t have to worry about him asserting claims to my property or coming after me for spousal support after our relationship ends, correct?
Ed: Not exactly.
Christina: What do you mean?
Ed: If you live with a boyfriend or a girlfriend and the relationship ends, you will not be ordered to pay alimony by a Family Law court, but you may get sued in a civil action for property and or for support payments based on a claim for breach of an expressed or an implied contract.
Christina: What does that mean?
Ed: It all started with an old-time movie actor named Lee Marvin. Lee Marvin was a great actor, typically playing the role of a tough guy or a soldier. You may remember him in the Dirty Dozen or Cat Ballou. Back in the seventies, Lee Marvin lived with a woman named Michelle Triola. They were never married. They just lived together for a period of years. After the couple split up, Michelle sued Lee in civil court, claiming that, in exchange for the domestic duties she performed, Lee had promised her an ownership interest in his earnings and property, as well as a promise to support her for the rest of her life. Michelle made a civil claim against Lee for breach of this alleged oral promise or contract. In the end, Michelle lost her case because the court concluded she had failed to prove the existence of an oral contract between Lee and herself. Although Michelle lost her civil case, the Marvin case opened the door for future “Marvin actions”. After the Marvin case, there was a flood of claims by ex-girlfriends and ex-boyfriends based on alleged expressed and implied contracts for property and support. A lot of these claims involved other celebrities. Peter Frampton was sued by his girlfriend, Penny McCall, in which she sought half of his earnings for the five year period they lived together. Liberace’s 22 year old boyfriend, Scott Thorson, sued Liberace for $113 million. Bill Maher was sued for $9 million by his ex-girlfriend, Nancy Johnson.
Christina: I understand what a written contract is. I also understand what an expressed oral contract is, where my live-in boyfriend and I verbally agree to share our earnings or acquisitions in a certain manner. What is an “implied contract”?
Ed: An implied contract is not based on expressed words, but is instead manifested by the conduct of the parties. The court can imply the existence of a contract regarding the ownership of property or regarding support based purely on the conduct of the parties. For example, if a couple is living together for a period of years, have joint bank accounts, joint credit cards, pool their earnings to pay joint expenses, and use both of their funds to purchase various assets, then the court could find that there was an implied understanding or contract that the earnings and assets the couple acquired during their relationship are joint property to be equally divided upon the breakup of the relationship.
Christina: So, even if I don’t get married, but merely live with my boyfriend, and even if I never expressly agree to share the assets I purchase and never agree to pay him palimony, when the relationship ends, I could still get sued for half my assets and for support for my ex-boyfriend’s lifetime if he decides to make up a story about an oral agreement to share assets and pay support or claims that there was an implied agreement.
Ed: That’s right. This can also be an issue when one party dies. For example, if a couple lives together for a period of time and then one of the parties dies, the survivor may make a claim against the deceased party’s estate based on an expressed or implied contract theory. Such a claim may be a big surprise to the deceased person’s heirs.
Christina: So what can I do to protect myself?
Ed: Before you move in together, you both should sign a written Cohabitation Agreement.
Christina: What is a Cohabitation Agreement?
Ed: A Cohabitation Agreement is a written document that clearly spells out each party’s rights and obligations during the period of time the parties will be living together. A Cohabitation Agreement may state that each party’s earnings during the relationship will remain that party’s separate property and any assets acquired with those earnings will remain separate. In the alternative, a Cohabitation Agreement may state that, while the parties live together, both of their earnings, as well as any assets that are acquired, will be deemed to be joint income and joint assets. A Cohabitation Agreement can also address the issue of support. The written agreement can make it clear that neither party will ever owe the other party any type of support. In the alternative, the written agreement may guarantee one party a certain amount of support for a certain period of time in the event the relationship ends. A Cohabitation Agreement could include a provision that any agreements between the parties must be in writing and that no agreements shall be implied by the future conduct of the parties. There are all kinds of provisions you can include in a Cohabitation Agreement.
Christina: Is it a good idea to enter into a Cohabitation Agreement if my boyfriend and I are about to move in together?
Ed: Yes. Cohabitation agreements can benefit both parties. They can eliminate future litigation. They can insure fair results when the relationship ends. Many people live together for years or even decades. When those relationships end, in many instances, it’s only fair that assets accumulated during the relationship get divided and, if there is a large discrepancy in the incomes of the parties, it may be fair that some amount of support be paid for a reasonable period of time. In my practice, there were many occasions when a woman in her late fifties or sixties would come to my office after having cohabited with a guy for 20 or 30 years. Their ex-mate had kicked them out. Some of these women had little in the way of assets and little or no income. I would have to tell these clients that if there was no cohabitation agreement and if they could not prove the existence of an expressed or implied contract for property or support, then there was little I could do for them. Without the marriage, they were not entitled to anything.
Another common issue I frequently encountered in my practice had to do with the cost of improvements made to the other party’s assets. Oftentimes, when a couple decides to live together, one party owns a home and the couple ends up living in that home. While living together, the person that does not own the home may contribute substantial funds or efforts towards making improvements to the home. When the relationship ends, there should be a written agreement in place that determines how the party that is leaving is going to be compensated for the value of those improvements.
So, if you intend to cohabit with someone for a long time, particularly if you intend to have children together, it is in both parties’ best interests to enter into a written cohabitation agreement that spells out how property acquired during the relationship is going to be divided and whether or not there is going to be any obligation by one party or the other to pay some amount of support for some period of time.
Christina: If I want to enter into a cohabitation agreement, where can I get one?
Ed: You can consult with an experienced Family Law attorney. If you want to improve the chances of the agreement withstanding any future legal attack, it would be best if both parties are represented by independent counsel and have both parties make a full and fair disclosure regarding their respective income, assets, and debts. There are Cohabitation Agreement templates for California available on the internet. Like Pre-Marital Agreement templates found on the internet, some are good, some are O.K., and some are garbage.
Ed: I want to make one final point. If you cohabited with someone and, after the breakup, you feel you have a valid claim for property and/or support, you should consult with an attorney right away because Statutes of Limitations apply to contract related claims. If you delay making a claim, you may lose your rights.
Christina: What about children? Let’s say I move in with my boyfriend and we have children together. Will I have rights to child custody? Will I have to pay child support?
Ed: Regardless of whether or not you have a Cohabitation Agreement, if you have children with the person you live with, you will have rights to custody with your children and you will have the obligation to support your children. Assuming there is no dispute regarding paternity, your rights and obligations regarding child custody and child support will be the same as if the two of you were married.
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Ed: If you visit our website, www.FreeDivorce.com, by clicking the link below, you will find over 70 free tutorial videos that will walk you through the process of how to do your own divorce, how to modify court orders, and how to obtain domestic violence restraining orders. Our website also has all the Judicial Council court forms you will need, for free, in a fillable format.