Standing in the Shadows: Honoring the Contractual Obligations of Cohabitants for Support
| Publication year | 1991 |
I. Introduction
Since the early 1970's, ever-increasing numbers of couples have rejected the commitment and long-term responsibilities of marriage. Rather, many couples are opting to live together outside the confines of a legal relationship.(fn1) Recent demographic studies show that as many as 2.6 million couples in America are choosing the alternative of cohabitation.(fn2) These cohabitants are raising novel legal questions about property and support rights following the termination of their relationships.
The variety of legal issues raised by cohabiting living arrangements is best illustrated by a typical hypothetical cohabitant's situation. Suppose a client, Ms. Jones, seeks legal assistance in order to protect her rights following the breakup of her ten year relationship with her live-in mate, Mr. Jones. The couple met in college, graduated, and decided to live together without the benefit of marriage; however, Ms. Jones assumed Mr. Jones' name. Mr. Jones indicated that he would take care of Ms. Jones if she would agree to stay home and assume responsibility for the domestic aspects of their life together. Consequently, Ms. Jones never pursued her career. She stayed home, bore two children, and ran the household. Mr. Jones became a successful architect, providing economic support for the household. The couple purchased a home and lived together in a marriage-like relationship for ten years. Mr. Jones eventually decided he was unhappy with the relationship and moved out. Apart from the property division issues, Ms. Jones' critical needs for support exceed what Mr. Jones is obligated to pay in child support. Ms. Jones has no job outside the home, no prospects for employment in the near future, and no stream of income with which to pay the expenses of day-to-day living. What relief is available to Ms. Jones under Washington State law? This area of post-cohabitation support has not yet been addressed by the Washington courts.
This Comment will explore the alternative legal theories on which Ms. Jones may proceed and the various approaches that courts have followed in an attempt to resolve post-cohabitation support issues. These theories range from status proposals to contract remedies. Initially, this Comment will examine traditional theories of marital support and their relation to post-cohabitant support. Next, this Comment will review express contract, implied-in-fact contract, and quasi-contract theories of support and how these different theories have been effectively applied by various state courts. A brief discussion follows concerning federal courts and the confusion surrounding the federal jurisdiction of cohabitation actions. Finally, the contract theories of relief will be contrasted against proposed legal status solutions.(fn3) Ultimately, this Comment concludes that post-cohabitation support issues are best resolved through contract theories. Solutions based on legal status are extremely intrusive and impose unbargained-for terms upon unwilling parties. In contrast, contract analysis more accurately rewards the actual expectation and reliance interests of the parties.
In particular, this Comment will argue that support should be awarded to a dependent cohabitant only if an express contract existed. In the absence of an express contract, the dependent cohabitant should only be able to recover the value of his or her services in quasi-contract in order to prevent the unjust enrichment of the supporting party. These two remedies, based on express and quasi-contract, give the courts flexibility while preserving and honoring the intent and expectations of the parties to the greatest extent possible. Consequently, state-imposed legal obligations are avoided. Alternative approaches, such as implied-in-fact contract actions or status based remedies(fn4) present troubling policy concerns. With these approaches, the state often takes a more intrusive role, imposing legal obligations on parties that are contrary to their intent.
II. Theories of Post-Marital and Post-Cohabitation Support
Before analyzing support in the context of cohabitation, we will examine and distinguish traditional marital support obligations. Post-marital support is commonly referred to as alimony or, more recently, maintenance. Alimony is a state-imposed legal obligation of support. At common law, women lost their legal identity upon marriage; therefore, the husband had a legal obligation to support his wife.(fn5) In the event of legal separation or divorce, the husband's duty to support continued on the theory that the wife had a perpetual right of support as if the marriage had remained intact. This theory was based upon the fault of the husband for divorcing his innocent wife. Thus, under the fault system of divorce, many jurisdictions only allowed alimony claims by innocent wives divorcing guilty husbands.(fn6)
With the advent of no-fault divorce laws came variations of the common law permanent alimony award. Under modern state laws, courts now use their equitable powers to award alimony (now frequently referred to as maintenance) on the basis of need, rehabilitation, restitution, or a lump-sum award characterized as part of the property division. Indeed, the lines between alimony or maintenance and property division are becoming increasingly blurred.(fn7) Often a court will take into account the amount of a property settlement when determining an equitable maintenance or alimony award. Parties may prefer to characterize money as alimony or maintenance to take advantage of favorable tax consequences.
In the state of Washington, marital spousal support, or maintenance, is calculated by considering the following factors: need for rehabilitation (i.e., job training), ability to pay, standard of living, length of marriage, and fitness or health.(fn8) Some factors serve a rehabilitative function by assessing a spouse's ability to procure employment. For instance, a spouse's health, past education, and experience will limit his or her employment options. After these factors are evaluated, a court may award maintenance to assist the spouse in obtaining the training or education necessary for support in a lifestyle comparable to the standard enjoyed during marriage. Other factors, such as length of marriage and standard of living, serve a compensatory function. The contrasting views of alimony as rehabilitative or compensatory have resulted in some dissension among authorities. Some experts have argued that alimony should have a rehabilitative function,(fn9) while others see it as compensatory in nature.(fn10) The compensatory rationale is based on the fact that the wife has traditionally made a substantial investment of time and services during the marriage that deserves compensation. She is often left at a disadvantage because although her domestic services and child-raising functions have value to her husband, such skills have no real value on the open market.(fn11)
Under this compensatory theory, post-marital support serves an economic function by compensating spouses for lost opportunity costs and loss in expected gain from marriage.(fn12) In short, even though maintenance is state-imposed on the basis of the parties' status as a married couple, compensatory maintenance also makes sense from a contractual standpoint because it strives to fulfill the parties' original expectations. Some of the same compensatory considerations inherent in the economic analysis of marital support are also relevant to the analysis of service and support contract actions among cohabitants.
Turning to the issue of post-cohabitation support, sometimes inaccurately referred to as palimony,(fn13) a great diversity of case precedent exists in American jurisdictions regarding the treatment of cohabitants' property and support rights. The landmark case dealing with cohabitation issues is
After remand and a second appeal, however, the
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