So, it finally happened. You have met that person who you are thinking, “This is the one.” You are inseparable and cannot live without each other. The next thing that happens is you are both “shacked up” together. It is another until death do us part baby.
Then, one night after a romantic interlude, she brings up the big “M” word. For a moment you are stunned, but come back with, “Baby, we don’t need to be married. This is the 21st century. You know that I don’t need a piece of paper or ring on my finger to prove how much I love you.”
That did not go over well. With some quick thinking (thinking?) your whip out the ‘ol prenuptial agreement that your attorney drafted for you in anticipation. You explain, “This is a prenuptial agreement that my attorney drafted for me. You know who my attorney is?”
“Yeah, I know who he is…”
“Well, it stipulates that whatever I have before the marriage is mine and whatever you have is yours. Remember, you moved into my house. It stipulates that you waive off things like spousal support….”
“Say baby, do mind getting me something to eat out of the frig…” She sarcastically replies, “Do you see a ring on my finger? You don’t own me. What have you done for me lately?”
So, time goes by, no marriage, no rings, no prenuptial agreement, and as with many relationships, there comes the big split.
You decide to go out for the night with the guys because, well, it is just one of those nights. She demands, “Where are you going?! What happened until death do us part?” You nonchalantly reply, “Do you see a ring on my finger? You don’t own me. What have you done for me lately?”**
1980’s pop music playing in the background…
Then it is the big splitsville. You’re thinking, “Good thing I didn’t get married!” She’s thinking, “That no good #@!!&$&?*(!. Screw him and his ugly girlfriend! I know, I’ll, I’ll, go after him for half!”
Well, not so fast. Remember, we are in California and there is no such thing as common law marriages as there are in some states that follow the English common law. So, what are the possible legal ramifications?
Whether you are familiar with the famous actor or not, there were similar circumstances involving actor Lee Marvin and his live in significant other, Michelle. Here is the law behind what I call “Marvin” agreements.
“It is a well-established fact that courts can enforce express agreements. But, in the absence of an express agreement, the courts may look to a variety of other remedies in order to protect the parties’ lawful expectations. The courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or implied agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may, when appropriate, employ principles of constructive trust or resulting trust. Finally, a nonmarital partner may recover in quantum meruit for the reasonable value of household services rendered less the reasonable value of support received if he can show that he rendered services with the expectation of monetary reward.” Marvin v Marvin (1976) 18 Cal.3d 660, 684.
So, there you have it, there is a legal remedy to such circumstances. It is contract law. First, if there is an express contract between an unmarried Plaintiff and Defendant with respect to home ownership and other property that created an ownership interest for Plaintiff through promises that Defendant made, that is enforceable. Second, there could be construed what is termed an implied contract between an unmarried Plaintiff and Defendant through their conduct that created an ownership interest for a party in property. Third, under a theory of “quantum meruit” an unmarried Plaintiff can be awarded an ownership interest in a home and for services provided to prevent Defendant from being unjustly enriched through the improvements that the Plaintiff made on the home and services received.
The California Supreme Court further stated in Marvin that unmarried partners can make agreements between them that result in a contractual relationship. “The fact that a man and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property, or expenses. Neither is such an agreement invalid merely because the parties may have contemplated the creation or continuation of a nonmarital relationship when they entered into it. Agreements between nonmarital partners fail only to the extent that they rest upon a consideration of meretricious sexual services.” (Id. at pp. 670-671.)
The Marvin court held that unmarried adults who live together are free under general principles of contract law to make agreements concerning their property and earnings, including agreements by one party to support the other or to share in their property. Cochran I (1997) 56 Cal.App.4th 1115, 1120 (Cal.App.Dist.2). The purpose of Marvin was to permit parties to a significant and stable relationship to contract concerning their earnings and property rights. Cochran II (2001), 89 Cal.App.4th 283 (Cal.App.Dist.2).
Cochran II, wow! Emphasis on “stable” there.
The courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or implied agreement of partnership or joint venture, or some other tacit understanding between the parties. Marvin v. Marvin [Marvin I] (1976) 18 Cal.3d 660, 684. The Marvin court said: “[Although] parties to a nonmarital relationship obviously cannot have based any expectations upon the belief that they were married, other expectations and equitable considerations remain. The parties may well expect that property will be divided in accord with the parties’ own tacit understanding and that in the absence of such understanding the courts will fairly apportion property accumulated through mutual effort. We need not treat nonmarital partners as putatively married persons in order to apply principles of implied contract, or extend equitable remedies; we need to treat them only as we do any other unmarried persons.” Id., at p. 682, italics added. “There is no more reason to presume that services are contributed as a gift than to presume that funds are contributed as a gift; in any event the better approach is to presume … ‘that the parties [intended] to deal fairly with each other.’ ” Id., at p. 683.
In the case of Alderson v. Alderson, Plaintiff and Defendant cohabited for 12 years, held themselves out as married, produced three children, acquired 14 parcels of realty and otherwise combined financial affairs. Although evidence of an agreement between Plaintiff and Defendant was rather nonspecific, the trial court found an implied agreement to share equally property acquired during cohabitation. The trial evidence in this case contained nothing relating to the details of the agreement between the parties. Apparently, the parties “never bothered to actually spell out the terms of their agreement ….” Alderson v. Alderson (1986) 180 Cal.App.3d 450, 463 (Cal.App.Dist. 1).
Nonetheless, the trial court’s decision that the agreement included the provision that the parties share equally in property was sustained. It may be that an “equal share” decision can be expected in the absence of evidence of an agreement to share unequally. It also appears that evidence of a significant period of “marriage-like” conduct is more likely to produce a finding that an implied agreement exists. Alderson v. Alderson (1986) 180 Cal.App.3d 450 (Cal.App.Dist. 1).
In the Alderson case, the court considered various factors in determining that an implied contract had been formed; including: Plaintiff’s testimony to this effect; the fact that the parties held themselves out socially, as well as otherwise, as husband and wife; the fact that the pair pooled their financial resources and then drew upon the same to purchase the subject properties; and the fact of Plaintiff’s participation in the properties other than financial (she kept the books on the properties, helped repair and fix up the properties, paid the bills and collected the rents). Id at 461.
Absence of contract between parties does not preclude recovery under the theory of quantum meruit. The underlying idea behind quantum meruit is the law’s distaste for unjust enrichment. If one party has received a benefit which he or she may not justly retain, one should “restore the aggrieved party to his [or her] former position by return of the “thing” or its “equivalent” in money.” (See 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts. §91, p. 122.)
“The measure of recovery in quantum meruit is the reasonable value of the services rendered provided they were of direct benefit to the defendant.” Palmer v. Gregg, (1967) 65 Cal.2d 657 at p. 660. italics added; see also Producers Cotton Oil Co. v. Amstar Corp. (1988 197 Cal.App.3d 638, 659.
“Because an implied-in-fact contract can be found where there is no expression of agreement in words, the line between an implied-in-fact contract and recovery in quantum meruit (where there may be no actual agreement at all) is fuzzy indeed. We will not attempt, in dicta, to clear up that fuzziness here. Suffice to say that because quantum meruit is a theory which implies a promise to pay for services as a matter of law for reasons of justice (Hedging Concepts Inc. v. First Alliance Mortgage Co. 41 Cal.App.4th at p. 1419), while implied-in-fact contracts are predicated on actual agreements, albeit not ones expressed in words (Silva v. Providence Hospital of Oakland, 14 Cal.2d at p. 773; McGough v. University of San Francisco, 214 Cal.App.3d at p. 1584), recovery in quantum meruit is necessarily a different theory than recovery on an implied-in-fact contract.” Cf. 1 Witkin, Summary of Cal. Law, supra, Contracts, § 112. pp. 137-138 (noting uncertainty created by decisions which were not clear about whether quantum meruit was based on implied-in-law or implied-in-fact contracts).
In Maglica v. Maglica, the parties had a 20-year relationship where the Defendant owned a manufacturing company but that company didn’t start to do well until Defendant began a relationship with the Plaintiff. It was Plaintiff’s insight in the manufacturing of flashlights (coming up with the idea of purse-sized flashlights with color) that made the business skyrocket. Plaintiff was an officer in the corporation and worked in the business. She was paid an equal salary to that of Defendant. The evidence clearly established that Defendant never intended Plaintiff to have an ownership interest in the business and the jury made a finding that she didn’t have a contract for an ownership interest in the business. (Maglica, Mag Flashlights)
Although this case was focused on jury instructions, the court determined that even the lack of intent for Plaintiff to have an ownership interest was not a bar to an award under a theory of quantum meruit. Maglica v. Maglica (1998) Cal.App.4th 442 (Cal.App.Dist.4).
Defendant Can be Declared a Constructive Trustee.
“One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.” Cal. Civ. Code § 2223.”The theory of a constructive trust was adopted by equity as a remedy to compel one to restore property to which he is not justly entitled, to another. The person holding the property may have acquired it through fraud, undue influence, breach of trust, or in any other improper manner and he is usually personally liable in damages for his acts.” Bainbridge v. Stoner, (1940) 16 Cal. 2d 423, 428 [106 P.2d 423]. Because it is “a remedial device primarily created to prevent unjust enrichment” Ornbaun v. Main, (1961) 198 Cal. App. 2d 92, 98 [17 Cal. Rptr. 631].
In general, equity will create a lien on property where this is necessary to accomplish substantial justice and protect creditors. Thus, courts will construe the existence of equitable liens where the parties have clearly attempted or intended to make real property security for an obligation. Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 510; 4 Witkin, Summary of Cal. Law (10th ed. 2005) Security Transactions in Real Property, § 18, pp. 808-809; or, even in the absence of any agreement, where it is necessary to prevent unjust enrichment. Smith v. Anglo-California Trust Co. (1928) 205 Cal. 496, 504, overruled on other grounds in Lucas v. Hamm (1961) 56 Cal.2d 583, 590-591.
Be advised, Evidence Code § 662 contains what is known as a “title presumption”. The party seeking to challenge the manner of how real estate (and other property) is titled has the burden of proof by clear and convincing evidence that the parties intended something other than what the record title says. This defense would more than likely arise in a real property dispute here.
So, there you have it. The question arises, would you have been better off marrying her or him than to be involved in such a case? The circumstances may very well depend on facts like how long you both lived together, what type of property you acquired during the relationship, what were the express and implied agreements, “What’s yours is mine and what’s mine is yours.” However, conduct could establish implied agreements, and remember, quantum meruit, nobody gets something for free, it is just not right according to our courts.
Married or not, seek legal advice in these circumstances from a skilled and knowledgeable attorney. Instead of a prenuptial agreement, think about a “Pooling” agreement.
Robert Rodriguez, Attorney at law
Robert Rodriguez has litigated “Marvin” actions in the State of California courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the State of California Court of Appeal.
** Raw. Eddie Murphy, 1987.
“What Have You Done For Me Lately?” – Janet Jackson
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