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Opting Out of Marriage? Watch out for Marvin!


I am a millennial family law attorney. I married late in life, and I have a lot of friends who are either taking their time getting to the altar or opting out of marriage altogether. I hear it often: the community property laws are oppressive, divorce is expensive, prenups aren’t romantic, and why does my love need a label? Conventional wisdom says that you are saving yourself stress, money, and potentially an emotional court case by opting out of marriage. We’ll just stay together as long as it feels right and then, if it ends, we will peacefully go our separate ways.

Right?? Well…. Maybe.

I’d like to introduce you to my friend, Marvin, a powerful legal doctrine gaining popularity and traction among nonmarried romantic partners.

What is a “Marvin” action, exactly?

In the seminal case giving rise to the “Marvin” body of law, Plaintiff Michelle Marvin alleged that she and Defendant Lee Marvin (yes – that Lee Marvin) entered into an oral agreement that she would quit her job as a nightclub singer and aspiring actress, move in with Lee, and tend to his home and raise his children. Lee promised to take care of Michelle. Michelle and Lee never married1 and, after six years together, Lee decided to marry someone else, and politely (I’m sure) asked Michelle to move elsewhere. At first, Lee kept his promise; he sent Michelle $833 per month to support her. When the checks stopped coming, Michelle hired a lawyer and sued Lee in civil court.

In the litigation, Michelle sued for breach of contract and alleged she and Lee agreed that while “the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.” (Marvin v. Marvin (1976) 18 Cal.3d 660, 666.) Michelle sought a judicial declaration as to her contract and property rights and to impose a constructive trust upon one-half of the property acquired during the course of the relationship. Michelle also sought monthly payments, similar to spousal support, which is commonly referred to as “palimony.” Ultimately, in a ground-breaking decision, the Supreme Court found in favor of Michelle, and held that “adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights.” (Id. at 674.)

Thus, the Marvin cause of action was born. The claim is based in contract law and requires a plaintiff to prove the same elements as a breach of contract claim – offer, acceptance, consideration, breach, and damages. Although Michelle’s complaint alleged she and Lee entered an express contract, the Supreme Court went on to discuss other possible claims a nonmarried romantic partner could assert (implied contract or implied partnership) or remedies a nonmarried romantic partner could seek (constructive trust, resulting trust, or quantum meruit) to address agreements between nonmarital partners. (Marvin, supra, 18 Cal.3d at 674.)

“‘Contracts may be express or implied. These terms, however, do not denote different kinds of contracts, but have reference to the evidence by which the agreement between the parties is shown. If the agreement is shown by the direct words of the parties, spoken or written, the contract is said to be an express one. But if such agreement can only be shown by the acts and conduct of the parties, interpreted in the light of the subject-matter and of the surrounding circumstances, then the contract is an implied one.’” (Marvin, supra, 18 Cal.3d at 678, fn. 16.)

Yes, you read that correctly. Under a Marvin claim, a litigant can assert the existence of an implied contract that arose solely through the conduct of the parties to claim rights over the assets and income of his or her former romantic partner. The agreement can be “very general and nonspecific” and can rest on such consideration as “to be [a] wife and to do ‘whatever a wife does’.” (Alderson v. Alderson (1986) 180 Cal.App.3d 450, 463.) But there must be some consideration – something the party seeking the income and assets of another – gave up in reliance on the agreement, and it cannot be based solely on sex.

Although Marvin v. Marvin was decided in 1979, it is still somewhat of a peripheral legal doctrine. Until the last decade or so. Rates of marriage are on the decline, and more and more couples are choosing not to marry or have extended courtships before marrying. But while a divorce action is fairly straightforward as to property rights – if acquired during marriage, the property is community (generally) – a Marvin action is governed by the alleged agreement between the parties. A Marvin claim can attach to a single asset, an entire estate, palimony only, property rights only, or any other combination. So these lawsuits are incredibly fact-intensive, and often a lot more expensive and time consuming to litigate. And a Marvin action is a civil action, and does not enjoy the strong principles of equity that come into play in family court.

So, as practitioners, how can we spot a potential Marvin claim? In the wild, they pop up all over the place, if you know to look for them. Here are just a few contexts in which I’ve encountered and litigated Marvin claims:

  1. As a stand-alone civil lawsuit.

    Hypothetical: Andy and Ann are both divorced and have children from previous marriages. They cohabit and enjoy a romantic relationship for many years, but expressly choose not to marry. For the next 25 years, they live together, separately accumulate wealth and assets, and raise their children together. Each helps the other manage his or her assets, but Ann is much more successful that Andy and her wealth is exponential when compared to his. After 25 years, Ann dumps Andy and tells him to move out of the home they’d shared, which is solely in Ann’s name.

    This is a fairly traditional Marvin case: a long, nonmarital romantic relationship. Based on the hypothetical as presented, there was no express agreement between them. But, if Andy can adequately identify legal consideration, he may be able to allege that he and Ann had an implied contract through their conduct to jointly accumulate assets and share in wealth together.

  2. In conjunction with a dissolution of marriage.

    Hypothetical: Jack and Jill dated for 15 years before they got married. Each accumulated significant assets and income before marriage, and the parties shared bank accounts, real property, vehicles, and almost all other assets. The marriage ended after 8 months, with very few assets acquired during the short marriage itself.

    In a case like this, you will want to file two cases – a Marvin action in civil court and a dissolution case in family court. For ease, the cases can be consolidated and handled together, but they must be filed separately to start.

  3. In conjunction with a probate action.

    Hypothetical: Johnny and Billy are a same-sex couple that never married. Johnny is the breadwinner as a successful financial advisor, while Billy keeps the home. The couple considers all their assets joint, even though they aren’t titled that way. Almost everything is in Johnny’s name. They have discussed a joint estate plan, but just never followed through with it. When Johnny passes unexpectedly, his family refuses to recognize Johnny and Billy’s union, and seeks to both administer Johnny’s estate and inherit all his assets through intestacy.

More and more, Marvin claims are arising in probate cases. The promise in this case can be the same as with two living partners – we agreed to pool our efforts and share in our wealth equally – or can be that one partner promised to leave provision awarding property to the other on death, and failed to follow through. Essentially, the failure to create an estate plan is a breach of the Marvin agreement. As above, a Marvin claim is filed as a separate civil lawsuit (pay mind to the creditor’s claim requirements).

Of note – a Marvin spouse is not conferred any priority in administering the estate of a deceased partner, at least not yet. Currently, a Marvin spouse is conferred rights to inheritance, but not necessarily rights to administration of the estate. As noted by the Marvin court, “Our opinion does not preclude the evolution of additional equitable remedies to protect the expectations of the parties to a nonmarital relationship in cases in which existing remedies prove inadequate; the suitability of such remedies may be determined in later cases in light of the factual setting in which they arise.” (Marvin, supra, 18 Cal.3d at FN 25.) So, stay tuned.

How can a Marvin action be avoided?

Well, it can’t. As we know, anyone can sue anyone, for anything, at any time. But, to try and guard against them, I advise my nonmarried romantic partner clients to discuss cohabitation agreements if they are considering moving in together. Cohabitation agreements are like prenups for nonmarried couples. The most common Marvin claims I see are over real property, and laying the terms of acquisition, cohabitation, or sale out clearly protects everyone’s expectations. It also prevents against buyer’s remorse or the … let's call them differing memories and recollections … that arise after a romance ends.

Having an express, written contract documenting agreements between nonmarried romantic partners is strong evidence that there are not implied or additional agreements between them. It gives both sides certainty and aligns everyone’s expectations. It’s not sexy, but neither is an expensive lawsuit.

1But yes, she did take Lee's surname as her own.

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