Unmarried parties residing together may ultimately find themselves impacted by various laws that relate directly or indirectly to family law. Living with someone in a romantic relationship subjects a person to the Domestic Violence Protection Act (DVPA). Cohabitation may create property rights from an express or implied agreement or contract. Cohabitation may create rights akin to spousal support, referred to as rehabilitation payments.
Common Law Marriage
California does not recognize common law marriage. There is no risk that cohabitation for any length of time will create marital property, marital rights, or a marriage itself. No community property is created during cohabitation.
Cohabitation & Spousal Support
Living with someone before a marriage will not be construed as the equivalent of being married for purposes of calculating the duration of a marriage in order to determine the duration of a spousal support order in a divorce.
Cohabitating with a person may result in a reduction or a termination of spousal support. There is a rebuttable presumption of reduced need if the recipient of spousal support cohabits in a romantic relationship with a person.
Cohabitation agreements may clearly define each person’s rights as they relate to cohabitation. Cohabitation provisions may be included in a premarital agreement.
Generally, living with a person with substantial wealth does not subject a divorced person to increased liability relative to paying spousal support to a former spouse. An exception could exist in a situation where a payor spouse moves in with a wealthy individual and subsequently quits his or her job.
Cohabitation & Child Support
Divorce courts may not consider the income of nonmarital partners in setting child support except in situations where to not do so would result in extreme hardship to a child.
Cohabitation cannot result in a non-parent being liable for child support except in unusual circumstances where a party represents to a child he or she was the child’s natural parent.
Cohabitation can lead to civil litigation in what is referred to as a “Marvin case." The phrase “Marvin case" refers to an Appellate Court case between Michelle Triola Marvin and Lee Marvin, the actor where she sought property and support. Michelle did not prevail in her case, but with a different set of facts, a person could prevail in certain aspects. A Marvin case is very different than a divorce. A party does have the benefit of the Family Code in a Marvin Action. These matters are essentially civil matters and are not tried in a divorce court. Attorney fees cannot be collected from the other party. The party seeking relief has the burden of proof on all issues. Like in any civil case, the litigants are entitled to a jury.
Validity of Premarital Agreements
Unmarried people may find themselves negotiating the terms of a premarital agreement. When parties enter into a premarital agreement there may be issues of interpretation and/or validity in a future divorce proceeding. There are specific presumptions that apply to these agreements. Some of these presumptions are rebuttable and can be overcome with sufficient evidence. The law has changed several times over the years, relative to which issues may be validly addressed in a premarital agreement and specific procedural requirements that must be complied with. It is critical to know the law as it existed on the date the premarital agreement was executed. If the parties do not agree as to the validity of an agreement, the divorce court will determine the issue. Trials on these issues can be extensive and may involve issues including unconscionably, the nature of the relationship between the parties when the agreement was executed, undue influence, voluntariness, lack of accurate disclosures, compliance with family code requirements relative to theexecution of the premarital agreement and issues of contractual interpretation.
A premarital agreement allows the parties to alter most of the rules that would apply if they elect to divorce. These agreements, if held to be valid, essentially replace community property laws.
The agreements can convert what would have been community earnings to separate property earnings. Separate property income is generated before marriage, after separation or is generated by separate property assets during the marriage. Premarital agreements may alter these laws.
Separate property is property acquired before marriage, after separation or during marriage by the way of inheritance or qualified gifts. Premarital agreements may alter these laws.
To be valid, gifts between spouses must meet the specific qualifications of the California Family Code. A clear intention, by itself, to give an item to the other spouse, does not replace or overcome the gift requirements of the Family Code. There are no restrictions relative to gifts of wearing apparel, jewelry or other tangible articles of personal nature solely or principally used by the recipient spouse and not substantial in value considering the economic circumstances of the marriage. The law relative to gifts may be overridden by the terms of a premarital agreement.
A vehicle of any price cannot be characterized as a gift in that it is not a tangible article of a personal nature. Whether items of art or furniture can be items solely or primarily used by one spouses is a question of fact. Premarital agreements may alter the rules relative to the definition gifts.
The terms of a premarital agreement cannot bind a divorce court relative issues related to child custody or child support.
Parties may contract with each other relative to the amount and duration of spousal support. However, the validity of these provisions will be determined by a divorce court's interpretation of the unconscionability of these terms as it exists on the date of a divorce.