Marvin Issues in Marital Dissolutions
By Jared Laskin and Terry Mc Niff
A. Introduction: Marvin Claims May Be Very Valuable.
..........A lawyer practicing family law in California must
have a working familiarity with the right of nonmarital partners to enforce
express or implied agreements for support or property sharing, as set forth
in Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106].
..........A Marvin claim is not extinguished by marriage.
Marriage of Stitt (1983) 147 Cal.App.3d 579, 584 [195 Cal.Rptr. 172].
Accordingly, since every married couple dated and/or lived together before
marriage, every dissolution proceeding presents the possibility for assertion
of a Marvin claim. The client's Marvin claim may be as valuable, or even
more valuable, than his or her rights arising from the marriage.
..........For example, if the marriage is short and a long
period of spousal support will not be ordered, a Marvin claim could result
in additional support. However, such a claim must be brought in a separate
civil action, since the court cannot simply "tack on" the period
of cohabitation in determining the length of the marriage. Marriage of
Bukaty (1986) 180 Cal.App.3d 143 [225 Cal.Rptr. 492].
..........Similarly, if the parties pooled their earnings
prior to marriage, the client may have an interest in what would otherwise
be the separate property of the other party. That interest cannot be enforced
in the dissolution proceeding; it too must be brought as a separate claim.
Marriage of Johnson (1983) 143 Cal.App.3d 57 [191 Cal.Rptr. 545].
..........Even if the marriage was a long one, counsel should
not assume that potential Marvin claims predating the marriage are no longer
viable. The statute of limitations will only rarely apply when a Marvin
claim is filed shortly after a married couple separates, since the cause
of action generally does not accrue until separation. Kurokawa v. Blum
(1988) 199 Cal.App.3d 976, 989 [245 Cal.Rptr. 463]; Estate of Fincher (1981)
119 Cal.App.3d 343, 352 [174 Cal.Rptr. 18]; Whorton v. Dillingham (1988)
202 Cal.App.3d 447, 456 [248 Cal.Rptr. 405]). Moreover, "the statute
of limitations does not run as between a husband and wife during the continuance
of the marital relationship." Marriage of Frick (1986) 181 Cal.App.3d
997, 1015 [226 Cal.Rptr. 766].
B. Distinctions between Marital Claims and Marvin
..........The Supreme Court in Marvin expressly declined
to treat unmarried cohabitants like married persons, overruling two prior
decisions of the Court of Appeal which had applied the Family Law Act to
unmarried cohabitants. (Marvin, supra, 18 Cal.3d at 681, overruling In re
Marriage of Cary 34 Cal.App.3d 345 [109 Cal.Rptr. 862] (1973) and Estate
of Atherley 44 Cal.App.3d 758 [119 Cal.Rptr. 41]) (1975).) Accordingly,
the family lawyer must keep firmly in mind the primary distinction between
family law proceedings and Marvin claims. A spouse's right to support or
property arises from the spouse's status as a married person, and nothing
more is required. On the other hand, a nonmarital partner's right to support
or property is dependent upon the existence of an express or implied contract
or some other legal or equitable basis for the claim, as set forth in Marvin
and its progeny.
..........For more information about the substantive law,
see California "Palimony" Law -- An Overview.
C. Initial Client Interview: Questions.
..........When conducting the initial client interview, counsel
should ask questions designed to elicit the nature and extent of the parties'
relationship before marriage, including the following questions:
.......... 1. Did the parties live together?
.......... 2. Did the parties jointly contribute to the
purchase of any property?
.......... 3. Did one of the parties support the other?
.......... 4. Did one of the parties perform valuable services
for the other?
.......... 5. Did one of the parties perform valuable services
for the other's company or employer?
.......... 6. Did the two people work together to create
or enhance anything of value?
.......... 7. Did the parties have any express agreement
regarding property sharing or support?
.......... 8. Did the parties have any tacit understanding
regarding property sharing or support?
D. What to Do if Facts may Give Rise to Marvin
.......... 1. Decide Whether and How to Handle Claims.
..........In every dissolution proceeding counsel should
consider filing a Marvin action, especially when representing a party who
is economically dependent on the other party. Where the client interview
indicates that the client may have a Marvin claim, and counsel is unfamiliar
with the terrain either procedurally or substantively, counsel must consider
carefully how to handle the situation.
..........One option is to refer the entire matter to counsel
who has had experience with Marvin claims. Another option is to associate
with experienced counsel; for such an association to work well, counsel
must carefully coordinate their strategies and actions, and must specifically
delineate who will take responsibility for each task. The attorney without
experience in bringing or defending Marvin claims should consider at least
consulting with experienced counsel, particularly with respect to discovery.
.......... 2. File Marvin Claim as a Separate Civil Action.
..........A Marvin claim must be filed as a separate civil
action, since trial courts in divorce proceedings do not have initial jurisdiction
over Marvin claims arising out of premarital cohabitation. Marriage of Johnson
(1983) 143 Cal.App.3d 57 [191 Cal.Rptr. 545]. Marriage of Buford (1984)
155 Cal.App.3d 74 [202 Cal.Rptr. 20].
.......... 3. Include all Applicable Legal Theories.
..........The following are the primary legal theories --
all mentioned in Marvin -- which are available to a Marvin plaintiff:
.................... a. Breach of express contract (or declaratory
relief regarding express contract);
.................... b. Breach of implied contract (or declaratory
relief regarding implied contract);
.................... c. Implied partnership or joint venture;
.................... d. Quantum meruit;
.................... e. Imposition of constructive trust (see Nelson
v. Nevel (1984) 154 Cal.App.3d 132, 139 [201 Cal.Rptr. 93]);
.................... f. Imposition of resulting trust (see Padilla
v. Padilla (1940) 38 Cal.App.2d 319; Martin v. Kehl (1983) 145 Cal.App.3d
228, 238-239 [195 Cal.Rptr. 312]).
.................... g. "Additional equitable remedies."
The Supreme Court in Marvin stated that its opinion did 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." Marvin, supra, 18 Cal.3d at 684, n.25. However,
almost two decades later no such remedies have yet evolved, and there are
several court of appeal decisions reversing attempts by trial courts to
create new remedies. Marvin v. Marvin ("Marvin II") (1981) 122
Cal.App.3d 871 [176 Cal.Rptr. 555]); Taylor v. Polackwich (1983) 145 Cal.App.3d
1014 [194 Cal.Rptr. 8]; Friedman v. Friedman (1993) 20 Cal.App.4th 876 [24
Cal.Rptr.2d 892]; Schafer v. Superior Court (1986) 180 Cal.App.3d 305, 310
[225 Cal.Rptr. 513]. Still, in unusual situations counsel may wish to argue
for unique remedies.
..........In drafting the complaint, counsel should include
all claims which arguably arise from the facts. That said, counsel should
be careful to ensure that every cause of action is supported by probable
cause. If the defendant succeeds in getting even one cause of action dismissed
by summary adjudication, the leverage the plaintiff hoped to obtain by bringing
the Marvin claims could be reversed. The California Supreme Court has held
that even one cause of action filed without probable cause may give rise
to a claim for malicious prosecution, even if other causes of action had
merit. Crowley v. Katleman (1994) 8 Cal.4th 666 [__ Cal.Rptr. __].
..........Counsel should also avoid alleging evidentiary
facts, as opposed to ultimate facts, in the complaint. Including too many
evidentiary facts in a complaint is bad practice because, among other things
detailed factual allegations: (a) give opposing counsel a road-map to the
case, acting as a sort of checklist for deposition questions and interrogatories;
and (b) commit the client to one version of the facts before discovery has
occurred, exposing the client to the risk of embarrassment or impeachment.
.......... 4. Decide Whether to Consolidate Marvin Action
and Dissolution Proceedings.
..........Once filed as a separate civil action, the Marvin
action can then be consolidated with the dissolution proceeding. Marriage
of Johnson, supra 143 Cal.App.3d at 63; Marriage of Buford, supra 155 Cal.App.3d
at 79 [202 Cal.Rptr. 20]. However, consolidation should not be considered an automatic next
step, because consolidation may not be desirable in every case. There are
several factors to consider in determining whether to consolidate the Marvin
action with the dissolution, including the following:
.................... a. Impact on Jury Trial Right:
To the extent that the Marvin claim is an action at law (e.g., breach of
contract) rather than one in equity (constructive trust), the parties will
have a right to a jury trial on the legal issues. Cal. Const. Art. I, section
16; Estate of Fincher (1981) 119 Cal.App.3d 343, 351 [174 Cal.Rptr. 19];
Connell v. Bowes (1942) 19 Cal.2d 870, 871 [123 P.2d 456]. However, counsel should check to determine whether consolidation will affect the right to a jury trial, as the court may require a waiver of jury trial as a condition to consolidation.
.................... b. Judicial Officer Assigned
to Case: In deciding whether to seek consolidation, counsel should evaluate
the idiosyncrasies and characteristics of the individual judicial officers
in the departments to which the matters have been (or are likely to be)
assigned. If the Marvin claim is going to be heard by a judge rather than
a jury, it might be preferable (depending on which party counsel represents)
to have the claim heard by a family law judge, since family law judges tend
to be more "equity" oriented than technically oriented and are
accustomed to making awards of support and property on a daily basis. A
judge in a regular civil department, on the other hand, may have a more
jaundiced view of Marvin claims. Counsel also should be aware that in some
departments or courts, judicial assignments change annually. Therefore,
.................... c. Time Until Trial. Depending
on the court in which the case is pending, it may take less time to get
to trial in the family law departments than the civil departments. This
may be a very important consideration in a particular case. For example,
where a long period of cohabitation is followed by a very short marriage,
the supported party's best chance for support may be the Marvin claim, and
that party may need to get to trial on that claim as soon as possible.
.................... d. Expense. It is generally more expensive to have two lawsuits involving the same people rather than
one consolidated lawsuit. Each Court will generally have its own procedures,
conferences and deadlines, resulting in some duplication of work.
.................... e. Discovery. Although discovery
deadlines are generally the same in both civil and family law courts, there
can certainly be differences between courts in how strictly those deadlines
are enforced. Also, allowable discovery tends to be broader in family law
courts, because family law judges are used to dealing with parties who have
a fiduciary duty to provide full disclosure, and because in family law matters
there is no privilege to refuse to produce tax returns. Family Code §3552.
.................... f. Attorney's Fees Reimbursement.
Consolidation of the actions may as a practical matter make it more likely
that the Marvin claimant will obtain reimbursement of attorney's fees, because:
(a) consolidation will make it more difficult to distinguish fees for the
Marvin claims from fees for the family law proceeding and (b) consolidation
may strengthen the argument that the Marvin action is "related"
to the dissolution proceeding under Family Code §2030. (See discussion
of attorney's fees below.)
.................... g. Existence of other Civil Claims.
One or both parties may have a number of tort claims against the other
party. If so, other considerations may militate for or against consolidation.
.......... 5. Carefully evaluate distinctions between spousal
support and a Marvin claim for support.
..........If the client has both a claim for spousal support
and a Marvin claim for support, counsel should carefully consider the differences
between the types of support when deciding which claim(s) to pursue or emphasize,
and particularly when deciding how to characterize support provided for
in a marital settlement agreement. Among the differences between the two
types of claims are the following:
.................... a. Availability of support pendente lite. In
seeking pendente lite support, counsel should proceed by way of an Order
to Show Cause in the dissolution proceeding; any attempt to obtain pendente
lite support by way of a motion in the Marvin action will almost certainly
be fruitless. See Friedman v. Friedman (1993) 20 Cal.App.4th 876 [24 Cal.Rptr.2d
.................... b. Length of Support. The length of an award
of spousal support will generally be related to the length of the marriage.
The length of an award of support pursuant to a Marvin claim will be determined
by the terms of the parties' express or implied agreement.
.................... c. Amount of Support. The amount of spousal
support will be based on the supported party's needs and the supporting
party's ability to pay. Family Code §4320. The amount of support
pursuant to a Marvin claim will, like length of support, be determined by
the terms of the parties express or implied agreement.
.................... d. Modification of Support. Except where the
parties specifically agree to the contrary, spousal support judgments may
always be modified on the ground of changed circumstances. Family Code
§3591(c). However, in a Marvin action, if the parties' expectations
regarding support are based on some standard other than need and ability
to pay (e.g., a set monthly amount), a civil judgment for support based
on those expectations may not be modifiable. See Dexter v. Dexter (1954)
42 Cal.2d 36, 41-42 [265 P.2d 873] (provision for support in an integrated
property settlement agreement is not modifiable).
.................... e. Termination of Support. Unless otherwise
agreed to by the parties in writing, spousal support terminates when a party
dies or when the supported party remarries. Family Code §4337. A
Marvin support award terminates in accordance with the terms of the parties'
express or implied agreement and therefore does not necessarily terminate
upon death or remarriage. However, it would be difficult to prove the existence
of an implied agreement for support extending beyond death or remarriage,
and an agreement for support extending beyond the death of the supporting
party may violate the Statute of Frauds or Probate Code 150, relating to
contracts to make wills. (However, the promisor may be estopped to invoke
the Statute of Frauds; see Defenses in Marvin Cases.)
.................... f. Dischargeability in Bankruptcy. Awards of
spousal support are not dischargeable in bankruptcy. 11 U.S.C. §523(a)(5).
However, support orders based solely on a Marvin claim are dischargeable.
In re James P. Doyle (9th Cir. BAP 1986) 70 B.R. 106.
.................... g. Enforceability by Contempt. Spousal support
awards are enforceable by contempt. Miller v. Superior Court (1937) 9 Cal.2d
733, 736-737 [72 P.2d 868]. Although there is no case on the issue, support
orders based on Marvin claims would almost certainly not be enforceable
by contempt, since they are really just a form of "damages" in
a civil action based on contract. See Bradley v. Superior Court (1957)
48 Cal.2d 509, 518 [310 P.2d 634] (husband's contractual obligation to pay
40% of his net income to former wife is not enforceable by contempt).
.................... h. Tax Consequences. While spousal support is
generally deductible by the paying party (Internal Revenue Code § 215),
support paid pursuant to a Marvin contract probably is not, unless it can
be characterized as a business expense (e.g., the supported party assisted
in running the supporting party's business).
.................... i. Legal Authority for Support. The legal authority
for spousal support is contained in the Family Code. Although support is
theoretically available under the holding of Marvin, counsel should be aware
there is no reported case in California approving an actual award of support
by the trial court. Noting this fact, the court of appeals in Schafer v.
Superior Court (1986) 180 Cal.App.3d 305, 310 [225 Cal.Rptr. 513] stated:
"Certainly we do not conclude that a nonmarital partner will never
establish a right to support based on implied contract. It is clear, however,
that unlike the situation in family law matters, there has been no routine
awarding of support in Marvin cases." Given the lack of California
authorities, counsel should consider citing Kozlowski v. Kozlowski (1979)
80 N.J. 378 [403 A.2d 902], a New Jersey decision upholding an award of
support in a Marvin-type case.
.......... 6. Seek an Award of Attorney Fees.
..........Attorney's fees are available in family law actions
according to need and ability to pay. Family Code §2030. Fees are
generally not available in civil actions in the absence of a specific agreement
to pay attorney's fees. Code of Civil Procedure §1021. However, Family
Code §2030 provides that attorney's fees are available "as may
be reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto." It has not been decided whether a Marvin claim qualifies as a "related proceeding" but a strong
argument can be made for such attorney's fees based on the holdings of Marriage
of Green (1992) 6 Cal.App.4th 584 [7 Cal.Rptr. 872] and Askew v. Askew (1994)
22 Cal.App.4th 942 [28 Cal.Rptr.2d 284], both of which held that the husband's
separately-filed civil claims were "related" to the dissolution
action for purposes of awarding fees to the wife. But cf. Marriage of Seaman
& Menjou (1991) 1 Cal.App.4th 1489, 1499 [2 Cal.Rptr.2d 690], holding
that dependency proceedings were not "related" to dissolution
proceedings under the facts of the case.
E. Conclusion: Carefully Evaluate Client's Potential
..........Family lawyers who are otherwise unfamiliar with
civil litigation may have to change their mind-set and approach to dissolution
proceedings in order to deal effectively with Marvin claims. However, to
protect the client's interests the family lawyer must make evaluation of
the parties' Marvin rights a routine part of the handling of every dissolution
..........The information on this Web page is based on California
law. It is not legal advice and cannot replace the advice of competent
legal counsel licensed in your State based on the specific facts and circumstances
of your case. See Disclaimer.