§ 1.03 Dating Claims

• Jurisdiction: United States
• Publication year: 2021

§ 1.03 Dating Claims

[1]—In General

It is unclear whether people who are not living together, but merely dating, may assert the same property claims as cohabitants. Courts may be more willing to apply the illegality limit to dating situations. For instance, in some cohabitation cases courts have emphasized that the doctrine of illegality should not be applied because the relationships involved were quite conventional.¹⁵⁴ The relationships were stable and monogamous, and the parties generally held themselves out as husband and wife.

In a dating case, the relationship involved is less frequently conventional. For example, a Washington case involved a dispute arising from a four-year affair between a married man and a single woman.¹⁵⁵ Although the parties sometimes spent an evening or a weekend together, the man lived with his wife during the course of the relationship. During the relationship, the man transferred amounts aggregating $30,000 to the woman. After the relationship ended, he sued to recover these funds, among other things. He alleged that a trust should be imposed upon these funds, since the parties planned to marry and this was to be their "nest egg." The court ruled that the man was not entitled to equitable relief. The court expressly distinguished the cohabitation cases, which generally involved stable, long-term relationships in which the parties held themselves out as husband and wife. In contrast, the case at bar involved a surreptitious and unstable situation where the parties did not live together.¹⁵⁶ It is clear that the court was offended by the relationship and therefore would not grant the plaintiff equitable relief.

In an almost identical case, the Nebraska Supreme Court reached the opposite result.¹⁵⁷ In this case, Phyllis, a married woman, had an affair with Robert, a single man. She apparently lived with her husband throughout the affair, which lasted approximately five years. After the affair had begun, Phyllis filed for divorce. At about that time, Robert and Phyllis apparently agreed to marry. Robert advanced money to Phyllis, so that she could buy a house. Title was taken in Phyllis' name alone, although both parties planned to live there after they were married. Robert and Phyllis subsequently became formally engaged, but Phyllis terminated the engagement. Robert sued to recover the funds he advanced to Phyllis for the house purchase. The court concluded that Robert could recover pursuant to either a resulting trust or a constructive trust, even though Robert in some sense induced Phyllis to divorce. The court considered Phyllis equally guilty and did not want her to keep her "illegal gains."

A similar case was presented by the celebrated dispute between the Bloomingdales and the late Vicki Morgan. This case involved alleged contracts between the late Alfred Bloomingdale and Vicki Morgan. One contract allegedly provided that Bloomingdale and Morgan were to be partners in a business venture; another provided that he would pay her a certain amount of monthly support for a certain period.¹⁵⁸ A severability argument presumably could be made regarding the former claim, unless Morgan's partnership contribution was sexual services. The latter claim more directly presents the illegality issue.

To the extent it is considered important whether the partners were "living together," it can sometimes be unclear whether this occurred. For example, a California case involved a couple who had conceived a child and had a long relationship. They only sporadically shared the same bed. The court concluded that this satisfied any requirement California had adopted requiring a stable and significant relationship as a prerequisite for being able to bring a Marvin-type claim.¹⁵⁹

The New Jersey Supreme Court has considered whether unmarried partners must cohabit to be able to bring a claim when the relationship ends. The court held that the parties must have a "marital-type relationship," and whether the parties cohabitated is a factor but not an absolute...