Lewis v. Lewis and Non-married Partner Litigation
| Publication year | 2010 |
| Pages | 33 |
| Citation | Vol. 39 No. 1 Pg. 33 |
2010, January, Pg. 33. Lewis v. Lewis and Non-Married Partner Litigation
January 2010
Vol. 39, No. 1 [Page 33]
Family Law articles are sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles focus on practice tips and discussions of current issues within the realm of family law.
Coordinating Editors
Trish Cooper, Denver, of the Law Office of Stephen J. Harhai-(303) 329-8300, tcooper@harhai.com; Meredith Patrick Cord, Colorado Springs, of Johnson and Cord, PC-(719) 471-4034, mpc@johnsoncord.com
About the Author
Kim Willoughby is a principal at Willoughby and Eckelberry, LLC, a firm limited to family law, estate planning, probate litigation, and bankruptcy-(303) 839-1770.
This article discusses how to litigate the issues of non-married partners at the time of a break-up, and highlights new case law that provides additional legal theories in this area.
The Colorado Supreme Court recently announced its decision in Lewis v. Lewis,(fn1) an unjust enrichment case. The ruling greatly expands remedies available to non-married partners(fn2) when their relationship ends. The Court held that when close family members or confidants act with a mutual purpose, unjust enrichment occurs when one party benefits from an action that significantly deviates from that mutual purpose.
This article provides an overview of pre-Lewis remedies available in Colorado to non-married partners at the end of a relationship, and briefly discusses how other states and nations grapple with the termination of non-married partner relationships. It also discusses Lewis and its application to non-married partners. Finally, it reflects on how Colorado courts treat same-sex couples who were validly married in other states or countries, but who now wish to end their relationships.
The Issue
The lives of non-married partners often mirror those of married partners. They have children, they acquire and co-mingle assets, they incur joint debts, they make financial sacrifices for each other, they become economically interdependent, and they may choose to have one partner stay at home while the other is employed.
The number of non-married partners continues to increase. A 2003 U.S. Census Bureau Special Report stated that:(fn3)
1) approximately 10 percent of total coupled households in Colorado were comprised of non-married partners;
2) there were approximately 81,000 non-married opposite-sex partners sharing a household in Colorado; and
3) there were approximately 10,000 non-married same-sex partners sharing households.
An American Community Survey determined that in 2005, non-married adults headed up 50.3 percent of the nation's housing units.(fn4) In 2007, the Census Bureau reported that in 2006, non-married Americans numbered 100 million.(fn5)
Non-married partners who have combined their finances or have become economically interdependent are faced with similar issues as married couples when their relationships end:
* what to do with the jointly owned house
* how to split the property that was purchased during the relationship
* how to divide the jointly titled brokerage accounts
* determining who pays off the debt
* determining whether and how to compensate the partner who quit his or her job and moved for the benefit of the other partner
* addressing the matter of one partner foregoing potentially significant career opportunities to stay at home with the kids.
Married couples have a statutory framework for answering these questions: the Uniform Dissolution of Marriage Act.(fn6) When couples are not married and cannot resolve their own disputes, there is little law to give direction on how to disentangle their relationships.
Pre-Lewis Causes of Action for Non-Married Partners
Colorado has no statute governing rights or responsibilities of non-married partners or the dissolution of their relationships. Before Lewis, non-married partners had three basic common law avenues for addressing legal issues incident to a break-up:
1) a common law marriage claim;
2) an unjust enrichment claim under Salzman v. Bachrach;(fn7) or
3) a suit made up of a hodgepodge of legal theories.
A brief discussion of each of these avenues follows.
Common Law Marriage
Colorado is one of the few states that still recognizes common law marriage.(fn8) A common law marriage occurs when two people who are eligible to be married agree between themselves that they are married, and hold themselves out to the community as being married.(fn9) A claim that a common law marriage exists is a factual claim.(fn10)
In the absence of an express agreement, the two most common factors used to determine the existence of a common law marriage are cohabitation and a general reputation in the community as husband and wife.(fn11) If the factual claim can be proven, then the couple is deemed married, the divorce statutes will apply to the termination of the relationship in the same fashion as for the dissolution of a ceremonial marriage. There is no "common law divorce."
However, often when a lawsuit alleges a common law marriage, it is because one of the partners denies there was a marriage. It is difficult to prove a common law marriage when the issue is contested.
Common law marriage is not an equitable remedy. Consequently, common law marriage cannot be used to provide equitable relief to partners whose relationship had the "quality" of a marriage. Rather, it is a question of fact that, if answered in the affirmative means the Uniform Dissolution of Marriage Act must be applied to the dissolution of the relationship. Additionally, common law marriage cannot be applied to same-sex couples, because Colorado does not recognize marriage between same-sex couples.(fn12)
Unjust Enrichment Under Salzman
The second avenue available is a claim brought under an unjust enrichment theory as outlined in Salzman v. Bachrach.(fn13) Salzman involved an opposite-sex couple who shared a home. The male partner contributed approximately one-third of the total cost of a $521,000 custom home, as well as his professional services during construction of the home. The female partner contributed approximately two-thirds of the cost of the home(fn14) and held sole title. Eventually, the relationship ended and the female partner expelled the male partner from the home.(fn15) The Colorado Supreme Court held that despite the fact that the parties were formerly cohabitating partners, the male partner could make a claim of unjust enrichment and was entitled to restitution.(fn16) The Court stated that an unjust enrichment claim is made if the plaintiff proves: (1) at plaintiff's expense (2) defendant received a benefit (3) under circumstances that would make it unjust for defendant to retain the benefit without paying.(fn17)
Under a Salzman claim of unjust enrichment, a...
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