Cohabitation Agreements in Colorado
| Publication year | 1986 |
| Pages | 979 |
| Citation | Vol. 15 No. 6 Pg. 979 |
1986, June, Pg. 979. Cohabitation Agreements In Colorado
Dramatic changes have taken place in American society in the last fifteen years. Recent U.S. Census Bureau data indicate that the number of unmarried couples has been growing by an average of 107,000 per year since 1970.(fn1) In March 1984, the number of unmarried couple households reached nearly 2 million, and this does not include same sex couple households. For one reason or another, many persons are choosing not to marry, to defer marriage, or not to remarry after divorce.
The proportion of men and women in their late 20's and early 30's who have never married has approximately doubled since 1970. While there are no reliable data, it is believed that a significant number of persons of the same sex reside together in households, including senior citizens who live together out of economic necessity. A recent Colorado Bar Association poll revealed that 4 percent of Colorado attorneys reside with a "significant other."(fn2)
Colorado attorneys are increasingly being approached by persons who desire to order their financial affairs within the context of a cohabitation relationship and who cannot or do not wish to marry. Since the case law sanctioning cohabitation agreements is of recent vintage and few states provide statutory authority for them,(fn3) it is advisable for the growing number of cohabitants to reduce such agreements to writing.
A cohabitation agreement is an oral or written contract between unrelated and unmarried persons who share a common household. The agreement usually addresses such issues as the pooling of financial resources, the sharing of household duties, household expenses, and the use and ownership of personal and real property. The parties referred to here as cohabitants may be of the same or the opposite sex. The agreement is usually most appropriate in the context of a relationship where the cohabitants reside together, may be involved in a sexual relationship, and are perceived by others as a socially and economically integrated household.(fn4)
The parties have no present intent to be married, do not hold themselves out as married persons, or by reason of legal impediment such as being of the same sex, cannot marry.(fn5) Furthermore, this relationship can be terminated by the parties simply by leaving each other. By reason of the degree of social and economic integration between the cohabitants, the cohabitation agreement is viewed as a vehicle to create legal protection for the parties approximating that which is created by law for married persons.
A majority of states now recognize the enforceability of agreements between cohabitants, at least where the consideration for the agreement is not illegal or immoral.(fn6) Formerly, the majority view was that it would be against public policy for courts to recognize relationships between unmarried persons. The courts referred to these relationships as being meretricious in nature. With the advent of the sexual revolution, the growth of alternative lifestyles and the decriminalization of sexual relations between adults, courts gradually devised theories by which cohabitation agreements could be enforced. Most states still will not enforce cohabitation agreements which are solely based upon illegal consideration. However, states will enforce such agreements even where illegal consideration is present by severing the illegal consideration from the legal consideration and upholding those provisions which are based on the latter.(fn7)
The most significant case in this area is Marvin v. Marvin,(fn8) where the cohabitants had combined their efforts and earnings and had agreed to share equally any and all property accumulated during the relationship. One of the parties had agreed to give up her career as an entertainer to become the companion, cook and housekeeper of the other party. The California court enforced what it found to be an oral, implied-in-fact agreement, since the conduct of the parties evidenced either an intent to pool and share earnings or an implied agreement to form a partnership or joint venture.
Another significant case, in New York, Morone v. Morone, upheld an express agreement between unmarried persons who resided together for over twenty-five years.(fn9) Arizona has enforced an agreement between unmarried cohabitants to share property acquired during the relationship by implying a partnership.(fn10) The Washington courts, which for many years have furnished judicial remedies to cohabitants,(fn11) share this approach and take the view that trial courts must examine a couple's relationship, analyze the property which has been accumulated, and then make a just and equitable disposition. New Mexico has determined that an oral contract can exist between two cohabiting adults who are not married if the essential elements of a contractual relationship are present.(fn12)
The Wyoming Supreme Court considered a case(fn13) where a man and woman had resided together after divorce for a four-year period, maintained a joint bank account, pooled salaries and jointly handled the financial affairs of the household. In addition, they purchased a home and worked
While express and implied agreements have been upheld, it should be noted that oral agreements have been upheld less frequently than written agreements for predictable reasons, such as burden of proof problems, including the dead man's statute, and violation of the statute of frauds. Additional problems of enforcement arise in the context of contractual provisions for household services. Many states will not recognize such provisions, presuming domestic services to be gratuitous.(fn15) Where such contractual provisions have been upheld, it has generally been in the context of express rather than implied contractual language and where the relationship has been of significant duration.(fn16)
Causes of action for loss of consortium arising out of non-marital cohabitation have met with little success except in California. In Butcher v. Superior Court,(fn17) such an action was approved where the relationship between the parties was stable and significant. The relationship was one of long duration and there was evidence of economic entanglement. There was also an exclusivity of sexual relations, children and a family-type relationship. There is little doubt that the cohabitants in Butcher would have been considered to be married in any state which recognizes common law marriage.
Cohabitants are usually not successful in obtaining benefits arising from a cohabitant's disability under state worker's compensation statutes, nor have they secured eligibility for damages arising out of the wrongful death of the cohabitant.(fn18) At least one city, however, has enacted an ordinance which would entitle cohabitants of municipal employees to benefits analogous to spousal benefits.(fn19)
A majority of the states' highest courts have evidenced a willingness to enforce agreements between cohabitants based upon a pragmatic analysis of the nature and duration of the relationship of the parties, the pooling of resources, the degree to which the parties participated in the acquisition of assets, and the actual contribution of the party seeking recovery under the agreement. To a lesser degree, the courts have applied constructive and resulting trust theories, partnership and joint venture theories, taken a formal title approach and, in the case of household services, have resorted to a quantum meruit approach.(fn20)
There is no appellate precedent in Colorado analogous to the Marvin case. Since Colorado recognizes common law marriages, it may well be that cohabitants of the opposite sex have opted to litigate their property disputes within the context of divorce litigation, rather than to submit their implied or express cohabitation agreements to the courts. Given present societal attitudes, cohabitants of the same sex have generally been reluctant to litigate for fear of public exposure. Finally, since the drafting of extensive written cohabitation agreements is of fairly recent vintage, a landmark case will probably not materialize until some time in the future. While Colorado lacks a Marvin case, the appellate decisions do address problems arising out of cohabitation.
By way of analogy, there is ample Colorado case law in the field of antenuptial agreements. Colorado recognizes antenuptial agreements as valid, enforceable and not void as against public policy.(fn21) Much of the case law on antenuptial agreements may be useful when the appellate courts begin to construe the present generation of cohabitation agreements. It is for this reason that the sample cohabitation agreement which follows this article (see Appendix) contains many paragraphs, particularly with respect to disclosure and unconscionability, which will appear familiar to the domestic relations practitioner who has drafted antenuptial agreements.
The earliest, and possibly the most important, Colorado case on cohabitation agreements is the 1924 Colorado Supreme Court decision of Baker v. Couch.(fn22) In this case, the cohabitants resided together pursuant to a contract which provided, in part:
Party of the first part agrees to permit the party of the second part to call at her...
To continue reading
Request your trial