Chapter 42 EXPRESS ORAL AGREEMENTS BETWEEN COHABITING PARTNERS

JurisdictionNew York

Chapter Forty-Two

Express Oral Agreements Between Cohabiting Partners

I. Express Oral Agreements Between Cohabiting Partners

In Trimmer v. Van Bomel,6562 the court observed:

The complex and varied relationships between men and women, when they come to an end, oft leave a bitter residue and a smoldering irritation for which the salve, often the only soothing balm, is cash. It is a poor substitute for love, affection or attention, but for many its satisfactions are longer lasting. "Ordinarily, alimony is the end product of the fission of matrimony by acrimony."

The notion of oral contracts achieved notoriety during the rage surrounding the celebrated Lee Marvin palimony case.6563 In Morone v. Morone,6564 the Court of Appeals acknowledged the changing social tide "where greatly increasing numbers of people were living together without solemnized ceremony and consequently without benefit of the rules of law that govern property and financial matters between married couples."

Express oral agreements between cohabiting parties are anchored in principles of equity where equity will intervene to support such an agreement when a relationship of confidence has been established and subsequently abused by one of the contracting parties6565 provided, however, that the agreement does not run afoul of certain proscriptions.

New York courts have long enforced express agreements between unmarried persons living together, provided only that illicit sexual relations were not "part of the consideration of the contract."6566 For almost a hundred years, the courts of this state have held that illicit sexual relations cannot provide part of the consideration for a contract.6567 The theory behind these cases was that "while cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law."6568

A. Morone v. Morone

The question in Morone was whether a contract as to earnings and assets may be implied in law from the relationship of an unmarried couple living together and whether an express contract of such a couple on those subjects is enforceable. The plaintiff in Morone sought to recover for her labor across 23 years based on express and implied agreements. The Court of Appeals declined to adopt the notion of "implied contract such as was recognized in Marvin v. Marvin,6569 because it found the idea to be conceptually so amorphous as practically to defy equitable enforcement, and inconsistent with the legislative policy enunciated in 1933 when common-law marriages were abolished in New York." However, the Court turned to Gorden,6570 a decision from an earlier bench, where it found an express contract between such a couple enforceable.

In Morone, the plaintiff and the defendant lived together and held themselves out as husband and wife; they had two children. The plaintiff argued that since the inception of the relationship she performed domestic duties and business services at the request of the defendant with the expectation that she would receive full compensation for them, and that the defendant had always accepted her services knowing that she expected compensation for them. The plaintiff suggested that the defendant had recognized that their economic fortunes were united, which included the filing of joint tax returns "over the past several years." This argument, grounded in implied contract, failed.

The plaintiff's key successful allegation was that she and the defendant had entered into a partnership agreement by which they expressly and orally agreed that she would furnish domestic services both at home and in his business and the defendant would have full charge of business transactions; "would support, maintain and provide for the plaintiff in accordance with his earning capacity and would take care of her and do right by her";6571 and that the profits from the partnership were to be used for and applied to their equal benefit. She also alleged that she was not permitted to obtain employment or he would leave her, and that for 23 years he collected large sums of money and dishonored the agreement, and, inter alia, refused her demands for an accounting. She demanded an accounting for moneys received by him during the partnership.

Special Term dismissed the complaint, concluding that no matter how liberally it was construed, it sought recovery for "housewifely" duties within a marital type of arrangement for which no recovery could be had (akin to personal services, see below). The Appellate Division affirmed because the first cause of action did not assert an express agreement and the second cause of action, though asserting an express partnership agreement, was based upon the same arrangement which was alleged in the first cause of action and was therefore "contextually inadequate."

B. The Court of Appeals Reversed

The appeals court turned to Gorden wherein an earlier bench held that property and financial rights between unmarried couples were available only under the principles of express contract even though the services rendered be limited to those generally characterized as "housewifely." Furthermore, Gorden noted that there was no statutory requirement that such a contract be in writing.6572 The Court of Appeals presented questions to be explored in cases involving express oral contracts:

• Is the length of time the relationship has continued a factor?

• Do the principles apply only to accumulated personal property, or do they encompass earnings as well?

• If earnings are to be included, how are the services of the homemaker to be valued?

• Should services which are generally regarded as amenities of cohabitation be included?

• Is there unfairness in compensating an unmarried renderer of domestic services but failing to accord the same rights to the legally married homemaker?

• Are the varying types of remedies allowed mutually exclusive or cumulative?

C. Implied Contract Is Not Valid

Morone rejected implied contracts between parties who are living together because of the associated impracticalities as well as for opportunities for emotion-driven afterthoughts and fraudulent testimony:

The major difficulty with implying a contract from the rendition of services for one another by persons living together is that it is not reasonable to infer an agreement to pay for the services rendered when the relationship of the parties makes it natural that the services were rendered
gratuitously. 6573 As a matter of human experience personal services will frequently be rendered by two people living together because they value each other's company or because they find it a convenient or rewarding thing to do. For courts to attempt through hindsight to sort out the intentions of the parties and affix jural significance to conduct carried out within an essentially private and generally noncontractual relationship runs too great a risk of error. Absent an express agreement, there is no frame of reference against which to compare the testimony presented and the character of the evidence that can be presented becomes more evanescent. There is, therefore, substantially greater risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compensation, if any, the parties intended to be paid. 6574
The notion of an implied contract between an unmarried couple living together is, thus, contrary to both New York decisional law and the implication arising from our Legislature's abolition of common-law marriage. The same conclusion has been reached by a significant number of States other than our own which have refused to allow recovery in implied contract.

No agreement will be inferred based upon the rendition and acceptance of personal services.6575 Similarly, "the implied obligation to compensate arises from those things which, in normal society, we expect to pay for. An obligation to pay for friendship is not ordinarily to be implied—it is too crass. Friendship, like virtue, must be its own reward."6576

An implied contract to pay for personal services rests upon a showing by the provider that the services were performed and accepted with the understanding on both sides that there was a fee obligation.6577 We have held that the existence of an implied contract is a question of fact.6578

II. No Interim Support For Nonmarried Parties

No pendente lite maintenance is available where the parties were not legally married.6579 On January 24, 2016, less than two months before this writing, the new temporary maintenance and post-divorce maintenance bill took effect. Each category directs the court to consider a "premarital joint household" in determining either temporary or post-divorce maintenance.6580 A premarital joint household bespeaks palimony. It cannot yet be determined what impact, if any, this will have on this issue.

III. "I Will Always Take Care of You"

There are several scattered decisions involving promises of "perpetual care," all of which have failed. The words to "always take care of you," in form or in substance, are too vague to spell out a meaningful promise.6581

In Harrington v. Murray,6582 the plaintiff alleged that following their divorce, the defendant orally agreed to take care of her for the rest of her life in the style to which she had become accustomed, in exchange for her promise to introduce and otherwise promote him socially in order to aid him in business and politics. The defendant also allegedly agreed to provide her with a home and half of the profits resulting from her efforts. The defendant gave the plaintiff a life estate in a cottage in Georgia which she later resold to him. In both transactions the parties consulted independent counsel.

Approximately 13 years after their divorce, the defendant also allowed the plaintiff...

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