Marvin Issues in Marital Dissolutions

By Jared Laskin and Terry Mc Niff

A. Introduction: Marvin Claims May Be Very Valuable.

..........A lawyer practicing family law in California must have a working familiarity with the right of nonmarital partners to enforce express or implied agreements for support or property sharing, as set forth in Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106].

..........A Marvin claim is not extinguished by marriage. Marriage of Stitt (1983) 147 Cal.App.3d 579, 584 [195 Cal.Rptr. 172]. Accordingly, since every married couple dated and/or lived together before marriage, every dissolution proceeding presents the possibility for assertion of a Marvin claim. The client's Marvin claim may be as valuable, or even more valuable, than his or her rights arising from the marriage.

..........For example, if the marriage is short and a long period of spousal support will not be ordered, a Marvin claim could result in additional support. However, such a claim must be brought in a separate civil action, since the court cannot simply "tack on" the period of cohabitation in determining the length of the marriage. Marriage of Bukaty (1986) 180 Cal.App.3d 143 [225 Cal.Rptr. 492].

..........Similarly, if the parties pooled their earnings prior to marriage, the client may have an interest in what would otherwise be the separate property of the other party. That interest cannot be enforced in the dissolution proceeding; it too must be brought as a separate claim. Marriage of Johnson (1983) 143 Cal.App.3d 57 [191 Cal.Rptr. 545].

..........Even if the marriage was a long one, counsel should not assume that potential Marvin claims predating the marriage are no longer viable. The statute of limitations will only rarely apply when a Marvin claim is filed shortly after a married couple separates, since the cause of action generally does not accrue until separation. Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 989 [245 Cal.Rptr. 463]; Estate of Fincher (1981) 119 Cal.App.3d 343, 352 [174 Cal.Rptr. 18]; Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 456 [248 Cal.Rptr. 405]). Moreover, "the statute of limitations does not run as between a husband and wife during the continuance of the marital relationship." Marriage of Frick (1986) 181 Cal.App.3d 997, 1015 [226 Cal.Rptr. 766].

B. Distinctions between Marital Claims and Marvin Claims

..........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. (Marvin, supra, 18 Cal.3d at 681, overruling In re Marriage of Cary 34 Cal.App.3d 345 [109 Cal.Rptr. 862] (1973) and Estate of Atherley 44 Cal.App.3d 758 [119 Cal.Rptr. 41]) (1975).) Accordingly, the family lawyer must keep firmly in mind the primary distinction between family law proceedings and Marvin claims. A spouse's right to support or property arises from the spouse's status as a married person, and nothing more is required. On the other hand, a nonmarital partner's right to support or property is dependent upon the existence of an express or implied contract or some other legal or equitable basis for the claim, as set forth in Marvin and its progeny.

..........For more information about the substantive law, see California "Palimony" Law -- An Overview.

C. Initial Client Interview: Questions.

..........When conducting the initial client interview, counsel should ask questions designed to elicit the nature and extent of the parties' relationship before marriage, including the following questions:

.......... 1. Did the parties live together?

.......... 2. Did the parties jointly contribute to the purchase of any property?

.......... 3. Did one of the parties support the other?

.......... 4. Did one of the parties perform valuable services for the other?

.......... 5. Did one of the parties perform valuable services for the other's company or employer?

.......... 6. Did the two people work together to create or enhance anything of value?

.......... 7. Did the parties have any express agreement regarding property sharing or support?

.......... 8. Did the parties have any tacit understanding regarding property sharing or support?

D. What to Do if Facts may Give Rise to Marvin Claims.

.......... 1. Decide Whether and How to Handle Claims.

..........In every dissolution proceeding counsel should consider filing a Marvin action, especially when representing a party who is economically dependent on the other party. Where the client interview indicates that the client may have a Marvin claim, and counsel is unfamiliar with the terrain either procedurally or substantively, counsel must consider carefully how to handle the situation.

..........One option is to refer the entire matter to counsel who has had experience with Marvin claims. Another option is to associate with experienced counsel; for such an association to work well, counsel must carefully coordinate their strategies and actions, and must specifically delineate who will take responsibility for each task. The attorney without experience in bringing or defending Marvin claims should consider at least consulting with experienced counsel, particularly with respect to discovery.

.......... 2. File Marvin Claim as a Separate Civil Action.

..........A Marvin claim must be filed as a separate civil action, since trial courts in divorce proceedings do not have initial jurisdiction over Marvin claims arising out of premarital cohabitation. Marriage of Johnson (1983) 143 Cal.App.3d 57 [191 Cal.Rptr. 545]. Marriage of Buford (1984) 155 Cal.App.3d 74 [202 Cal.Rptr. 20].

.......... 3. Include all Applicable Legal Theories.

..........The following are the primary legal theories -- all mentioned in Marvin -- which are available to a Marvin plaintiff:

.................... a. Breach of express contract (or declaratory relief regarding express contract);

.................... b. Breach of implied contract (or declaratory relief regarding implied contract);

.................... c. Implied partnership or joint venture;

.................... d. Quantum meruit;

.................... e. Imposition of constructive trust (see Nelson v. Nevel (1984) 154 Cal.App.3d 132, 139 [201 Cal.Rptr. 93]);

.................... f. Imposition of resulting trust (see Padilla v. Padilla (1940) 38 Cal.App.2d 319; Martin v. Kehl (1983) 145 Cal.App.3d 228, 238-239 [195 Cal.Rptr. 312]).

.................... g. "Additional equitable remedies." The Supreme Court in Marvin 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." Marvin, supra, 18 Cal.3d at 684, n.25. However, almost two decades later no such remedies have yet evolved, and there are several court of appeal decisions reversing attempts by trial courts to create new remedies. Marvin v. Marvin ("Marvin II") (1981) 122 Cal.App.3d 871 [176 Cal.Rptr. 555]); Taylor v. Polackwich (1983) 145 Cal.App.3d 1014 [194 Cal.Rptr. 8]; Friedman v. Friedman (1993) 20 Cal.App.4th 876 [24 Cal.Rptr.2d 892]; Schafer v. Superior Court (1986) 180 Cal.App.3d 305, 310 [225 Cal.Rptr. 513]. Still, in unusual situations counsel may wish to argue for unique remedies.

..........In drafting the complaint, counsel should include all claims which arguably arise from the facts. That said, counsel should be careful to ensure that every cause of action is supported by probable cause. If the defendant succeeds in getting even one cause of action dismissed by summary adjudication, the leverage the plaintiff hoped to obtain by bringing the Marvin claims could be reversed. The California Supreme Court has held that even one cause of action filed without probable cause may give rise to a claim for malicious prosecution, even if other causes of action had merit. Crowley v. Katleman (1994) 8 Cal.4th 666 [__ Cal.Rptr. __].

..........Counsel should also avoid alleging evidentiary facts, as opposed to ultimate facts, in the complaint. Including too many evidentiary facts in a complaint is bad practice because, among other things detailed factual allegations: (a) give opposing counsel a road-map to the case, acting as a sort of checklist for deposition questions and interrogatories; and (b) commit the client to one version of the facts before discovery has occurred, exposing the client to the risk of embarrassment or impeachment.

.......... 4. Decide Whether to Consolidate Marvin Action and Dissolution Proceedings.

..........Once filed as a separate civil action, the Marvin action can then be consolidated with the dissolution proceeding. Marriage of Johnson, supra 143 Cal.App.3d at 63; Marriage of Buford, supra 155 Cal.App.3d at 79 [202 Cal.Rptr. 20]. However, consolidation should not be considered an automatic next step, because consolidation may not be desirable in every case. There are several factors to consider in determining whether to consolidate the Marvin action with the dissolution, including the following:

.................... a. Impact on Jury Trial Right: To the extent that the Marvin claim is an action at law (e.g., breach of contract) rather than one in equity (constructive trust), the parties will have a right to a jury trial on the legal issues. Cal. Const. Art. I, section 16; Estate of Fincher (1981) 119 Cal.App.3d 343, 351 [174 Cal.Rptr. 19]; Connell v. Bowes (1942) 19 Cal.2d 870, 871 [123 P.2d 456]. However, counsel should check to determine whether consolidation will affect the right to a jury trial, as the court may require a waiver of jury trial as a condition to consolidation.

.................... b. Judicial Officer Assigned to Case: In deciding whether to seek consolidation, counsel should evaluate the idiosyncrasies and characteristics of the individual judicial officers in the departments to which the matters have been (or are likely to be) assigned. If the Marvin claim is going to be heard by a judge rather than a jury, it might be preferable (depending on which party counsel represents) to have the claim heard by a family law judge, since family law judges tend to be more "equity" oriented than technically oriented and are accustomed to making awards of support and property on a daily basis. A judge in a regular civil department, on the other hand, may have a more jaundiced view of Marvin claims. Counsel also should be aware that in some departments or courts, judicial assignments change annually. Therefore, be careful.

.................... c. Time Until Trial. Depending on the court in which the case is pending, it may take less time to get to trial in the family law departments than the civil departments. This may be a very important consideration in a particular case. For example, where a long period of cohabitation is followed by a very short marriage, the supported party's best chance for support may be the Marvin claim, and that party may need to get to trial on that claim as soon as possible.

.................... d. Expense. It is generally more expensive to have two lawsuits involving the same people rather than one consolidated lawsuit. Each Court will generally have its own procedures, conferences and deadlines, resulting in some duplication of work.

.................... e. Discovery. Although discovery deadlines are generally the same in both civil and family law courts, there can certainly be differences between courts in how strictly those deadlines are enforced. Also, allowable discovery tends to be broader in family law courts, because family law judges are used to dealing with parties who have a fiduciary duty to provide full disclosure, and because in family law matters there is no privilege to refuse to produce tax returns. Family Code §3552.

.................... f. Attorney's Fees Reimbursement. Consolidation of the actions may as a practical matter make it more likely that the Marvin claimant will obtain reimbursement of attorney's fees, because: (a) consolidation will make it more difficult to distinguish fees for the Marvin claims from fees for the family law proceeding and (b) consolidation may strengthen the argument that the Marvin action is "related" to the dissolution proceeding under Family Code §2030. (See discussion of attorney's fees below.)

.................... g. Existence of other Civil Claims. One or both parties may have a number of tort claims against the other party. If so, other considerations may militate for or against consolidation.

.......... 5. Carefully evaluate distinctions between spousal support and a Marvin claim for support.

..........If the client has both a claim for spousal support and a Marvin claim for support, counsel should carefully consider the differences between the types of support when deciding which claim(s) to pursue or emphasize, and particularly when deciding how to characterize support provided for in a marital settlement agreement. Among the differences between the two types of claims are the following:

.................... a. Availability of support pendente lite. In seeking pendente lite support, counsel should proceed by way of an Order to Show Cause in the dissolution proceeding; any attempt to obtain pendente lite support by way of a motion in the Marvin action will almost certainly be fruitless. See Friedman v. Friedman (1993) 20 Cal.App.4th 876 [24 Cal.Rptr.2d 892].

.................... b. Length of Support. The length of an award of spousal support will generally be related to the length of the marriage. The length of an award of support pursuant to a Marvin claim will be determined by the terms of the parties' express or implied agreement.

.................... c. Amount of Support. The amount of spousal support will be based on the supported party's needs and the supporting party's ability to pay. Family Code §4320. The amount of support pursuant to a Marvin claim will, like length of support, be determined by the terms of the parties express or implied agreement.

.................... d. Modification of Support. Except where the parties specifically agree to the contrary, spousal support judgments may always be modified on the ground of changed circumstances. Family Code §3591(c). However, in a Marvin action, if the parties' expectations regarding support are based on some standard other than need and ability to pay (e.g., a set monthly amount), a civil judgment for support based on those expectations may not be modifiable. See Dexter v. Dexter (1954) 42 Cal.2d 36, 41-42 [265 P.2d 873] (provision for support in an integrated property settlement agreement is not modifiable).

.................... e. Termination of Support. Unless otherwise agreed to by the parties in writing, spousal support terminates when a party dies or when the supported party remarries. Family Code §4337. A Marvin support award terminates in accordance with the terms of the parties' express or implied agreement and therefore does not necessarily terminate upon death or remarriage. However, it would be difficult to prove the existence of an implied agreement for support extending beyond death or remarriage, and an agreement for support extending beyond the death of the supporting party may violate the Statute of Frauds or Probate Code 150, relating to contracts to make wills. (However, the promisor may be estopped to invoke the Statute of Frauds; see Defenses in Marvin Cases.)

.................... f. Dischargeability in Bankruptcy. Awards of spousal support are not dischargeable in bankruptcy. 11 U.S.C. §523(a)(5). However, support orders based solely on a Marvin claim are dischargeable. In re James P. Doyle (9th Cir. BAP 1986) 70 B.R. 106.

.................... g. Enforceability by Contempt. Spousal support awards are enforceable by contempt. Miller v. Superior Court (1937) 9 Cal.2d 733, 736-737 [72 P.2d 868]. Although there is no case on the issue, support orders based on Marvin claims would almost certainly not be enforceable by contempt, since they are really just a form of "damages" in a civil action based on contract. See Bradley v. Superior Court (1957) 48 Cal.2d 509, 518 [310 P.2d 634] (husband's contractual obligation to pay 40% of his net income to former wife is not enforceable by contempt).

.................... h. Tax Consequences. While spousal support is generally deductible by the paying party (Internal Revenue Code § 215), support paid pursuant to a Marvin contract probably is not, unless it can be characterized as a business expense (e.g., the supported party assisted in running the supporting party's business).

.................... i. Legal Authority for Support. The legal authority for spousal support is contained in the Family Code. Although support is theoretically available under the holding of Marvin, counsel should be aware there is no reported case in California approving an actual award of support by the trial court. Noting this fact, the court of appeals in Schafer v. Superior Court (1986) 180 Cal.App.3d 305, 310 [225 Cal.Rptr. 513] stated: "Certainly we do not conclude that a nonmarital partner will never establish a right to support based on implied contract. It is clear, however, that unlike the situation in family law matters, there has been no routine awarding of support in Marvin cases." Given the lack of California authorities, counsel should consider citing Kozlowski v. Kozlowski (1979) 80 N.J. 378 [403 A.2d 902], a New Jersey decision upholding an award of support in a Marvin-type case.

.......... 6. Seek an Award of Attorney Fees.

..........Attorney's fees are available in family law actions according to need and ability to pay. Family Code §2030. Fees are generally not available in civil actions in the absence of a specific agreement to pay attorney's fees. Code of Civil Procedure §1021. However, Family Code §2030 provides that attorney's fees are available "as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto." It has not been decided whether a Marvin claim qualifies as a "related proceeding" but a strong argument can be made for such attorney's fees based on the holdings of Marriage of Green (1992) 6 Cal.App.4th 584 [7 Cal.Rptr. 872] and Askew v. Askew (1994) 22 Cal.App.4th 942 [28 Cal.Rptr.2d 284], both of which held that the husband's separately-filed civil claims were "related" to the dissolution action for purposes of awarding fees to the wife. But cf. Marriage of Seaman & Menjou (1991) 1 Cal.App.4th 1489, 1499 [2 Cal.Rptr.2d 690], holding that dependency proceedings were not "related" to dissolution proceedings under the facts of the case.

E. Conclusion: Carefully Evaluate Client's Potential Claims.

..........Family lawyers who are otherwise unfamiliar with civil litigation may have to change their mind-set and approach to dissolution proceedings in order to deal effectively with Marvin claims. However, to protect the client's interests the family lawyer must make evaluation of the parties' Marvin rights a routine part of the handling of every dissolution proceeding.

..........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.