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Enforceability of Domestic Partnership Agreements
© 2001 National Legal Research Group, Inc.
Scope of This Article
This article addresses issues relating to the enforceability of express domestic partnership, or cohabitation, agreements. The application of other legal theories to enforce the rights of unmarried cohabitants in the absence of an express contract, such as quasi-contract, partnership, unjust enrichment, constructive or resulting trust, and tracing source of funds, is beyond the scope of this article.
General Validity of Domestic Partnership, or Cohabitation, Agreements
Early cases precluded enforcement of agreements, oral or written, express or implied, regarding property rights of unmarried cohabitants on the premise that the consideration for the contract was necessarily sexual services. Thus, courts held "that neither law nor equity will enforce a contract founded on immoral consideration such as sexual relations." Boot v. Beelen, 224 Ga. App. 384, 386, 480 S.E.2d 267, 269 (1997); see also Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987).
More recently, courts have rejected this approach and have held such contracts generally enforceable. Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (1976), began the modern trend in which courts have recognized the right of unmarried cohabitants to enter into express contracts to pool resources and acquire property. Thus, rather than rejecting all such contracts, courts have said, "[A]n express agreement between adult unmarried persons living together is unenforceable only to the extent that it explicitly and inseparably is founded on sexual relations." Wilcox v. Trautz, 427 Mass. 326, 330-31, 693 N.E.2d 141, 145 (1998). With the single exception of Illinois, in every state where the issue has been presented, courts have held that express agreements are generally enforceable. In Hewitt v. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204 (1979), the Supreme Court of Illinois rejected enforcement of an express contract to share property accumulated during cohabitation, citing the public policy reason that to do so would discourage marriage and the belief that recognition of nonmarital property rights should be left to the legislature. Although it suggested that contracts between cohabiting parties could be valid as to independent matters, 77 Ill. 2d at 59, 394 N.E.2d at 1208, the scope of the opinion's prohibition is broad. Spafford v. Coats, 118 Ill. App. 3d 556, 455 N.E.2d 241 (1983), illustrates the narrow range of permissible contracts. There, the court awarded compensation to a cohabitant for the amount of cash she contributed to specific items of property titled to the other party on a theory of unjust enrichment. Neither Hewitt nor Spafford leaves room for an express cohabitation agreement to share property accumulated during a relationship in consideration for unequal financial contributions and/or nonmonetary consideration such as domestic services. Hewitt has been criticized by other courts and by commentators. Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987); Hudson v. DeLonjay, 732 S.W.2d 922 (Mo. Ct. App. 1987). However, for now, it does not appear domestic partnership agreements are enforceable in Illinois. See Donovan v. Scuderi, 51 Md. App. 217, 443 A.2d 121 (1982); Poe v. Estate of Levy, 411 So. 2d 253 (Fla. Dist. Ct. App. 1982); Tapley v. Tapley, 122 N.H. 727, 449 A.2d 1218 (1982); Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979). (See the list of cases and statutes addressing domestic partnership agreements, following.) Although sexual relations may be incidental to the relationship, that does not preclude parties from entering into an express contract governing the financial and property aspects of their relationship. Salzman v. Bachrach, 996 P.2d 1263 (Colo. 2000); Boot v. Beelen, 224 Ga. App. 384, 480 S.E.2d 267 (1997); Poe v. Estate of Levy, 411 So. 2d 253 (Fla. Dist. Ct. App. 1982); Green v. Richmond, 369 Mass. 47, 337 N.E.2d 691 (1975). "Unmarried persons who are living together have the same rights to lawfully contract with each other regarding their property as do other unmarried individuals." Hay v. Hay, 100 Nev. 196, 199, 678 P.2d 672, 674 (1984). All that is required are the same essential elements of the contractual relationship as would be required for any other contract between adults. Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (Ct. App. 1980); Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987). Courts have included same-sex couples in approving express contracts notwithstanding state law criminalizing homosexual conduct. See Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997); Small v. Harper, 638 S.W.2d 24 (Tex. App. 1982).
Public Policy Limitations on Parties' Right to Contract
Although unmarried cohabitants may contract regarding property rights, there remain some limits on their freedom. A contract that violates public policy will not be enforced. Thus, a contract conditioned on a party obtaining a divorce from his or her spouse is contrary to the state's interest in preserving marriage and is unenforceable. Hoffman v. Boyd, 698 So. 2d 346 (Fla. Dist. Ct. App. 1997). But see Estate of Peterson, 579 N.W.2d 488 (Minn. 1998) (court held a written agreement was unenforceable under a statute requiring that agreements in contemplation of cohabitation be in writing. The surviving cohabitant testified the consideration was a promise to divorce. The agreement failed because it did not state the consideration in the text of the document, not because the consideration was divorce).
Moreover, the old rule that contracts for which the consideration is sexual relations are invalid contracts remains intact. Wilcox v. Trautz, 427 Mass. 326, 693 N.E.2d 141 (1998); Hudson v. DeLonjay, 732 S.W.2d 922 (Mo. Ct. App. 1987). Only Minnesota and Texas have seemed to back away from the rule that sexual relations cannot form the consideration for the agreement. Both states have statutes requiring that contracts between unmarried persons in which sexual relations are contemplated must be in writing. Minn. Stat. 513.075 (1996); Tex. Bus. & Com. Code Ann. 26.01.
Courts have generally not precluded same-sex couples from enforcing express contracts relating to property notwithstanding that in most states homosexual activity remains illegal. See Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997); Small v. Harper, 638 S.W.2d 24 (Tex. App. 1982) (no public policy reason precludes lesbian couple from entering into enforceable contract regarding ownership of property); see also Silver v. Starrett, 176 Misc. 2d 511, 674 N.Y.S.2d 915 (Sup. Ct. 1998) (separation agreement providing for 5-year payout to settle potential claims of same-sex cohabitant was enforceable).
Rights of Unmarried Cohabitants in the Absence of Contract: Why Cohabitants Need Express, Written Agreements
Marital status alone creates legal rights and obligations. Parties may limit or enlarge these rights through a contract. By contrast, cohabitation alone creates no obligations. (Except, perhaps, in Oregon or Washington where courts have taken an expansive view of the rights of cohabitants even in the absence of agreement. See discussion of Oregon and Washington below.) Salzman v. Bachrach, 996 P.2d 1263 (Colo. 2000); Seward v. Mentrup, 87 Ohio App. 3d 601, 622 N.E.2d 756 (1993); Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987); Morone v. Morone, 50 N.Y.2d 481, 413 N.E.2d 1154, 429 N.Y.S.2d 592 (1980). Nevertheless, parties who enter into cohabitation arrangements without spelling out what rights and obligations they will have in property and income may be forced to litigate claims a party thought he or she could avoid by remaining unmarried.
Most of the reported cases involve claims arising out of an oral agreement of some kind. Some of the agreements were express. Many were not. Where the agreement was not express, the party seeking a court award was forced to assert theories of implied contract or unjust enrichment. Some courts have rejected all such agreements founded solely on an implied contract. Morone v. Morone, 50 N.Y.2d 481, 413 N.E.2d 1154, 429 N.Y.S.2d 592 (1980); Wilcox v. Trautz, 427 Mass. 326, 693 N.E.2d 141 (1998). Even those courts that recognize an implied contract in these circumstances do not always find that such a contract was formed. See Maria v. Freitas, 73 Haw. 266, 832 P.2d 259 (1992). The party asserting the implied contract has the burden of proof, and proof is sometimes hard to come by; many of the actions during the relationship that might support a finding of an implied contract are equally explained as part of the modern courtship ritual in which parties live together before deciding whether to marry, or are otherwise motivated by affection rather than business. See Soderholm v. Kosty, 177 Misc. 2d 403, 676 N.Y.S.2d 850 (Just. Ct. 1998); Tarry v. Stewart, 98 Ohio App. 3d 533, 649 N.E.2d 1 (1994).
A cohabitant who wishes to either assert a right to property titled in the name of the other cohabitant or to limit such claims should have an express, written contract defining financial rights and obligations. Two cases illustrate the point. In Maglica v. Maglica, 66 Cal. App. 4th 442, 78 Cal. Rptr. 2d 101 (1998), Claire Maglica claimed an equity interest in Anthony Maglica's company, Mag Instrument, the company that manufactures the Maglite flashlight, based on her work for the company, for which she was paid a salary, and her contribution of good ideas, including the idea for the purse-sized flashlight in colors. During the time the parties cohabited, the value of the company grew to hundreds of millions of dollars. Significantly, the appellate court held that Claire was erroneously allowed a quantum meruit recovery based on the reasonable value to the company of the result of her ideas and efforts rather than the reasonable value of her services. Such an award gave Claire de facto ownership. The court noted that the right to an equity interest in a business as compensation for services is "extraordinary in the labor market, and always the result of specific bargaining." 66 Cal. App. 4th at 451, 78 Cal. Rptr. 2d at 106. Thus, equity for service must be the result of an actual contract; quasi-contract does not permit recovery beyond the value of the services. Maglica points up the need for an express contract where parties agree to cohabit and where one party will contribute services to an enterprise solely owned by the other. In this case, had Anthony wished to limit Claire's rights, an express contract would have permitted him to do so. By the same token, had Claire wanted to assert the right to either an equity interest in the business or to receive compensation commensurate with the value of her ideas, an express contract could have protected her interests.
In Western States v. Michoff, 108 Nev. 931, 840 P.2d 1220 (1992), Lois Michoff alleged she started a business with Max Michoff, and they agreed to share ownership. Max contributed the money to start the company. The parties held themselves out as married, but there was no express agreement to share all property acquired during the relationship. Nevertheless, the court found an implied agreement to hold property as if married and applied community property law to award half of all the parties' assets to Lois. Ironically, Max had resisted marriage, thinking a more informal arrangement would better protect his financial interests. 108 Nev. at 939 n.6, 840 P.2d at 1225 n.6. The parties here could have avoided litigation with an express, written cohabitation agreement, or a marriage with a premarital agreement, defining their rights to the business and other property acquired during the relationship. In that event, Lois would have been on notice to insist on either adequate compensation for her labor or equity in the business or other assets, and Max could have insisted on a fair return on his greater financial investment in starting the business.
A few courts have taken rather expansive views of the property rights of cohabitants. Washington and Oregon courts have gone the farthest in their treatment of property rights. In Wilber v. DeLapp, 119 Or. App. 348, 850 P.2d 1151 (1993), the Oregon Court of Appeals went a step beyond an implied contract, which requires at least that the parties have manifested through their conduct an intent to share property. While acknowledging that the primary consideration in dividing property acquired in a nonmarital relationship is the intent of the parties, the court in Wilber went on to say: "[I]n distributing the property of a domestic partnership, we are not precluded from exercising our equitable powers to reach a fair result based on the circumstances of each case." 119 Or. at 351, 850 P.2d at 1153. The court held: "[Wilber] is entitled to an award that recognizes her contribution to the parties' financial circumstances." 119 Or. at 352, 850 P.2d at 1153. In recognition of her contributions, Ms. Wilber received, among other things, an award representing half the value of Mr. DeLapp's retirement benefits earned during the relationship. She also received an amount equal to half the value of a lot he purchased in his name just prior to the parties' separation. The court made the latter award on the strength of Ms. Wilber's argument that the parties intended the lot for their retirement and that her general contributions to the domestic partnership made it possible for Mr. DeLapp to be able to afford to buy the lot. This approach does not appear to differ from equitable distribution in any significant way. See also Shuraleff v. Donnelly, 108 Or. App. 707, 817 P.2d 764 (1991) (man's substantial labor, contributing to development of property titled in woman's name during 15-year relationship, entitled him to equitable division of all property accumulated during relationship).
Washington is the only other state to have gone as far as Oregon in creating equitable property rights for unmarried cohabitants akin to the rights of married persons. In a series of cases, the Washington courts have determined to treat property of parties in a meretricious relationship, which the court defines as a stable, marriage-like relationship, as analogous to community property and have mandated that courts equitably divide any property that would have been community property had the parties been married. The Washington court has conferred community property-like benefits only on couples in meretricious relationships. It defines "meretricious" as a marital-like relationship. Because same-sex couples cannot marry, such couples are, therefore, by definition, not in meretricious relationships and do not acquire property rights by virtue of the relationship alone. Vasquez v. Hawthorne, 99 Wash. App. 363, 994 P.2d 240 (2000). However, presumably, same-sex couples would retain the same right other unmarried couples have to enter into express, written agreements defining their property rights. Connell v. Francisco, 127 Wash. 2d 339, 898 P.2d 831 (1995); Marriage of Lindsey, 101 Wash. 2d 299, 678 P.2d 328 (1984). Proof of an intent to share, either express or implied, is not required; rather, the court appears to have created a presumption of an intent to share from status alone. Marriage of Lindemann, 92 Wash. App. 64, 960 P.2d 966 (1998). (Despite the caption, the parties in Lindemann were not married at the time of this litigation. They had been married and divorced, after a break of several years started living together again, but never remarried.) Thus, in Washington, courts must employ principles of community property law, including the concept that each partner owes the community the fruits of his or her labor to prevent unjust enrichment. Connell v. Francisco, 127 Wash. 2d 339, 898 P.2d 831 (1995). Further, commingling "relationship property" with separate property, or the contribution of labor and efforts to build and grow a business, may result in the nontitled partner acquiring an interest in a business started prior to the relationship and which would otherwise have been separate property under state community property law. Thus, in Koher v. Morgan, 93 Wash. App. 398, 968 P.2d 920 (1998), and Marriage of Lindemann, 92 Wash. App. 64, 960 P.2d 966 (1998), the nontitled spouse was awarded a substantial sum representing a share of the value of a separately titled business.
In the area of quasi-spousal support, New Jersey has taken the enforcement of claims of contractual obligations for lifetime support farther than any other state to date. In Crowe v. De Giola, 90 N.J. 126, 447 A.2d 173 (1982), the court upheld an award of temporary support to a woman who claimed an express contract to provide support for life. The court acknowledged that the trial court had no authority to award alimony because alimony may only be awarded in a matrimonial action. However, it employed equitable remedies, including specific performance and injunction, to preserve the status quo during the litigation notwithstanding that the plaintiff had yet to prove the existence of the contract.
The American Law Institute has under consideration "Principles of the Law of Family Dissolution: Analysis and Recommendations," Tentative Draft No. 4 (Apr. 10, 2000), in which ALl took up for the first time the proposed rights of domestic partners. Tentative Draft No. 4 provides that domestic partners will have rights similar to those of married persons. Thus, "domestic partnership property" is defined as property that would be marital property if the parties had been married to each other and provides for the division of such property upon dissolution of the relationship in accordance with the same principles that would govern if the parties were married. Tentative Draft No. 4, 6.04, 6.05. The position of Tentative Draft No. 4 appears quite similar to the law regarding the property rights of domestic partners as it has developed in Oregon and Washington. If the position reflected there takes hold, parties who cohabit will acquire property rights and, possibly, rights to support, upon dissolution by virtue of their status, rights which do not now exist in the absence of contract except in a few states.
In sum, cohabitants who wish to reduce the risk of litigation and to protect their financial and property interests from the claims of cohabitants, or who wish to establish their monetary rights in the fruits of such relationships, need express contracts defining their rights and obligations. Where courts have limited parties' rights, the less wealthy partner or the partner who will contribute primarily domestic services, or who will make other nonmonetary contributions, needs the protection of an agreement that creates rights. By contrast, where courts have been expansive, the wealthier party will need a contract to limit the claims on his or her wealth. In either event, each party needs to understand that a change of heart or a change of circumstances will not provide a basis on which that party may reduce or enhance his or her rights vis-a-vis the other party. See Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997).
Criteria for Validity
Contracts between unmarried cohabitants regarding property and support rights are governed by the same validity criteria as other contracts. Wilcox v. Trautz, 427 Mass. 326, 693 N.E.2d 141 (1998); Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (Ct. App. 1980). Thus, the contract must have been executed voluntarily, not under duress or as a result of fraud, by one with legal capacity to contract, and there must have been consideration. Silver v. Starrett, 176 Misc. 2d 511, 674 N.Y.S. 2d 915 (Sup. Ct. 1998); Wilcox v. Trautz, 427 Mass. 326, 693 N.E.2d 141 (1998); Cook v. Cook, 142 Ariz. 573, 691 P.2d 664 (1984). There must have been a meeting of the minds as to all essential terms of the contract. Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990).
Consideration
The consideration for the contract must not be solely or primarily sexual relations. Boot v. Beelen, 224 Ga. App. 384, 480 S.E.2d 267 (1997); Suggs v. Norris, 88 N.C. App. 539, 364 S.E.2d 159 (1988); Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987). Many cases refer to the prohibited consideration as a meretricious relationship. See Featherstone v. Steinhoff, 226 Mich. App. 584, 588, 575 N.W.2d 6, 9 (1997); Watts v. Watts, 137 Wis. 2d 506, 525, 405 N.W.2d 303, 311 (1987); Joan S. v. John S., 121 N.H. 96, 99, 427 A.2d 498, 500 (1981). Meretricious was generally defined as pertaining to prostitution. Marvin v. Marvin, 18 Cal. 3d 660, 683, 557 P.2d 106, 122, 134 Cal. Rptr. 815 (1976); see also Morone v. Morone, 50 N.Y.2d 481, 486 n.2, 413 N.E.2d 1154, 1156 n.2, 429 N.Y.S.2d 592 n.2 (1980) (quoting Webster's Third New International Dictionary Unabridged 1413). However, courts have tended to back away from this definition in recognition of the prevalence of nonmarital living arrangements that look much like marriages. Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987); Morone v. Morone, 50 N.Y.2d 481, 413 N.E.2d 1154, 429 N.Y.S.2d 592 (1980). Indeed, the Washington Supreme Court has redefined the term to eliminate entirely its pejorative meaning, describing a meretricious relationship as a term of art meaning "a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage does not exist." Connell v. Francisco, 127 Wash. 2d 339, 346, 898 P.2d 831, 834 (1995). The sexual component of the relationship will cause the contract to be unenforceable only if it is an "inseparable part of the consideration for the agreement." Marvin v. Marvin, 18 Cal. 3d 660, 672, 557 P.2d 106, 114, 134 Cal. Rptr. 815 (1976); see also Wilcox v. Trautz, 427 Mass. 326, 693 N.E.2d 141 (1998); Donovan v. Scuderi, 51 Md. App. 217, 443 A.2d 121 (1982). The consideration must be independent of the meretricious relationship. Cook v. Cook, 142 Ariz. 573, 691 P.2d 664 (1984). Making procreation an element of the consideration is not tantamount to making sexual relations the only, or the dominant, consideration for the contract. Rather, making having children together a part of a package of marriage-like benefits is no different than a cohabitation contract in which sex is one of many benefits. Della Zoppa v. Della Zoppa, ___ Cal. App. 4th ___, 103 Cal. Rptr. 2d 901 (2001).
"Adequate consideration consists of a benefit to the promisor and a detriment to the promisee." Carroll v. Lee, 148 Ariz. 10, 13, 712 P.2d 923, 926 (1986). Put another way, "Consideration is something of value given in return for a performance or promise of performance that is bargained for; consideration is what distinguishes a contract from a gift." Estate of Peterson, 579 N.W.2d 488, 490 (Minn. Ct. App. 1998). The consideration can include domestic or household services and need not be comprised of actual cash contributions to the acquisition of property. Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987); Pickens v. Pickens, 490 So. 2d 872 (Miss. 1986); Carroll v. Lee, 148 Ariz. 10, 712 P.2d 923 (1986); Donovan v. Scuderi, 51 Md. App. 217, 443 A.2d 121 (1982); Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981); Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (1976); Tyranski v. Piggins, 44 Mich. App. 470, 205 N.W.2d 595 (1979); Latham v. Latham, 274 Or. 421, 547 P.2d 144 (1976). Consideration can also include uncompensated services to a business or commercial enterprise or to the improvement of property. Saizman v. Bachrach, 996 P.2d 1263 (Colo. 2000); Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987); Mason v. Rostad, 476 A.2d 662 (D.C. 1984). A party's agreement to detrimentally change his or her position, such as by quitting a job to provide domestic services or companionship, constitutes consideration. Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987); Mullen v. Suchko, 279 Pa. Super. 499, 421 A.2d 310 (1980). As in other contracts, a promise of future action can support a cohabitation agreement, such as a promise that a party will repay the other party for monies expended for support of the household or a business. Boot v. Beelen, 224 Ga. App. 384, 480 S.E.2d 267 (1997). Consideration can consist of an agreement to share and pool income and resources. Hudson v. DeLonjay, 732 S.W.2d. 922 (Mo. Ct. App. 1987); Cook v. Cook, 142 Ariz. 573, 691 P.2d 664 (1984); Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (Ct. App. 1980). The parties' financial contributions to the pool need not be equal. Carroll v. Lee, 148 Ariz. 10, 712 P.2d 923 (1986).
Fairness and Conscionability
Domestic partnership contracts need not be fair. Wilcox v. Trautz, 427 Mass. 326, 693 N.E.2d 141 (1998). Rather, in the absence of fraud or overreaching, a contract that is very favorable to one party, and commensurately unfavorable to the other party, will be enforceable. Silver v. Starrett, 176 Misc. 2d 511, 674 N.Y.S.2d 915 (Sup. Ct. 1998); Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997). Nor do changed circumstances provide a basis for relieving a party of his or her obligations under such a contract. See Boot v. Beelen, 224 Ga. App. 384, 480 S.E.2d 267 (1997) (financial setbacks did not relieve party of obligation to pay certain sums under written contract executed at termination of nonmarital relationship).
Signed Writing
In only a few states have courts or legislatures expressly provided that agreements for the disposition of property or support between an unmarried couple must be in writing. See Minn. Stat. 513.075, 513.076; Tex. Bus. & Com. Code Ann. 26.01; Zaremba v. Cliburn, 949 S.W.2d 822 (Tex. App. 1997). The Florida court, analogizing such agreements to premarital agreements, which are required by the Statute of Frauds to be in writing, held that a signed writing is required for an enforceable cohabitation agreement. Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997). Many states have statutory or case law requiring that contracts to make a will be in writing. See Dombrowski v. Somers, 41 N.Y.2d 858, 362 N.E.2d 257, 393 N.Y.S.2d 796 (1977).
Comparison to Premarital and
To a limited extent, courts may relieve a party to a pre- or postmarital agreement of some of the effects of the agreement if the result at divorce is unfair or unconscionable. Thus, where changed circumstances since execution will cause a party to become eligible for public assistance or will otherwise cause substantial hardship, a court may be able to refuse enforcement of an alimony waiver. By contrast, a court has no power to rewrite a domestic partnership agreement to provide for a support obligation which would not exist even in the absence of such an agreement.
Parties to a pre- or postmarital agreement must generally provide adequate disclosure of financial information. By requiring disclosure, the disadvantaged party has the opportunity to negotiate for better terms. Moreover, voluntariness in the context of pre- and postmarital agreements is generally deemed to include some degree of knowledge of the marital rights which would accrue to the parties in the absence of an agreement. Courts have shown no inclination to apply similar requirements for validity of nonmarital contracts. On the contrary, courts have rejected application of the additional elements required to create a valid pre- or postmarital agreement, disclosure, knowledge of the rights that would accrue in the absence of agreement, or fairness, that generally apply in the marital context. Wilcox v. Trautz, 427 Mass. 326, 693 N.E.2d 141 (1998). Full financial disclosure is not a general obligation of contracting parties who are neither engaged to be married nor already married. Only general contract principles precluding fraud, misrepresentation, or other forms of dishonesty govern the formation of cohabitation contracts.
Enforceability of Contracts Relating to Qualified or Statutory Retirement Plans
None of the reported cases in which courts have been asked to resolve a dispute about property acquired during a nonmarital relationship have involved a claim to a direct payment from the plan administrator of private qualified retirement benefits or a statutory pension plan such as the federal Civil Service Retirement System. In any event, ERISA does not grant any rights to domestic partners. Retirement benefits are a special class of property. All qualified plan benefits and all federal statutory plans are always separately titled. Only spouses may acquire any vested rights, and then only as a surviving spouse in the event of death while married to the participant, or as a divorced spouse, but only in accordance with a court order entered in accordance with state marital property law. 29 U.S.C. 1001 et seq.; 26 U.S.C. 401(a)(11), 414(p) (qualified plans); 5 U.S.C. 8339(j),(i) (Federal Civil Service). Thus, an express contract provision for a domestic partner to receive a distribution directly from the plan administrator upon separation, or compelling a designation of a domestic partner as a survivor upon death, would likely be unenforceable against the plan itself. See Egelhoff v. Egelhoff, 121 S. Ct. 1322 (2001).
Courts in Oregon and Washington, but nowhere else, have made equitable awards to cohabitants that included a component based on the value of retirement benefits. See Connell v. Francisco, 127 Wash. 2d 339, 898 P.2d 831 (1995); WiIber v. DeLapp, 119 Or. App. 348, 850 P.2d 1151 (1993). However, these awards did not purport to be directed to the plan administrators. There appears to be no reason parties could not provide expressly in an agreement for consideration of the value of retirement benefits and a payout of cash or other assets to compensate for such value, nor is there any reason a plan participant could not agree to name a domestic partner as a survivor under a joint and survivor annuity or as beneficiary of a death benefit so long as the terms of the plan permit the participant to do so.
Enforceability of Provisions for Support After the Termination of the Relationship
There is little guidance in the case law regarding the enforcement of provisions of cohabitation agreements requiring a party to make periodic payments for the support of the other party after the termination of the relationship. In one typical scenario, one party promises to take care of the other party for life without being more specific. Courts have sometimes enforced such contracts, determining from the specific facts of the case what the promise to provide support for life consisted of. Thus, in Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981), the court found that the parties agreed that Ms. Kinkenon would live with Mr. Hue on his farm, that he built a home on the property for her, and that they intended that she have the right to live in the house for life. The court ordered specific performance of the contract. In Byrne v. Laura, 52 Cal. App. 4th 1054, 60 Cal. Rptr. 2d 908 (1997), the court considered the standard of living Mr. Laura had provided during the years the parties lived together to determine how his promise to provide for Ms. Byrne for life was to be fulfilled after his death. In both Kinkenon and Byrne, the support obligor was deceased, and the court's job was to determine what portion of the decedent's estate was due the survivor to "take care of" her for the remainder of her life under the contract. Neither case dealt with a claim analogous to alimony payable during the joint lives of the parties. Levar v. Elkins, 604 P.2d 602 (Alaska 1980), dealt with a separation rather than a death. Mr. Levar promised to provide for Ms. Elkins for life in return for homemaker services. A jury awarded her a lump sum when the relationship ended, apparently based on the present value of the future stream of support.
Courts have tended to uphold express agreements providing for a specific, defined periodic or lump-sum support payment upon termination of a same-sex relationship. In Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997), the court enforced such an agreement. Dr. Layton, a physician, induced Ms. Posik, a nurse, to leave her job and move to a new city with her for professional reasons. The women entered into a detailed, written agreement, which Ms. Posik insisted on as a condition of leaving her job and moving, under which Ms. Posik would provide homemaker services and Dr. Layton would make a will leaving Ms. Posik her entire estate, and would maintain jointly titled bank accounts and other non-probate assets in Ms. Posik's name. Dr. Layton also agreed that in the event the relationship ended, she would pay Ms. Posik $2,500 per month for life for her support. The Florida court had no difficulty finding that the agreement was enforceable in accordance with its terms, rejecting any suggestion that the agreement was unenforceable because the parties were homosexual or because they had a sexual relationship. Rather, it observed:
It was a nuptial agreement entered into by two parties that the state prohibits from marrying. But even though the state has prohibited same-sex marriages and same-sex adoptions, it has not prohibited this type of agreement. By prohibiting same-sex marriages, the state has merely denied homosexuals the rights granted to married partners that flow naturally from the marital relationship. In short, "the law of Florida creates no legal rights or duties between live-ins." Lowry v. Lowry, 512 So. 2d 1142 (Fla. 5th DCA 1987) (Sharp, J., concurring specially). This lack of recognition of the rights which flow naturally from the break-up of a marital relationship applies to unmarried heterosexuals as well as homosexuals. But the State has not denied these individuals their right to either will their property as they see fit nor to privately commit by contract to spend their money as they choose. The State is not thusly condoning the lifestyles of homosexuals or unmarried live-ins; it is merely recognizing their constitutional private property and contract rights.
Even though no legal rights or obligations flow as a matter of law from a non-marital relationship, we see no impediment to the parties to such a relationship agreeing between themselves to provide certain rights and obligations.
Id. at 761. The court went on to hold that the specific provision in question was enforceable as a reasonable provision for liquidated damages because Ms. Posik's damages, including lost wages and moving expenses, could not have been known at the time the agreement was executed. In Silver v. Starrett, 176 Misc. 2d 511, 674 N.Y.S.2d 915 (Sup. Ct. 1998), the court upheld an agreement negotiated at the end of a same-sex relationship in which Dr. Starrett agreed to make monthly payments over a 5-year period to settle any claims Ms. Silver might have had to support or property arising out of their long-term relationship. In upholding these agreements, the courts applied the familiar principle, equally applicable to premarital agreements, that courts will not relieve a party of a bad bargain. Unaddressed in these cases is whether a provision for unreasonably high periodic or lump-sum quasi-support, or what the court in Posik called liquidated damages, one that imposes too great a support burden on the payor, will be enforced. Presumably, a postseparation support payment that provides too little for the payee will be enforceable as written, since an unmarried cohabitant has no right to support absent a contract. See Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979) (alimony may only be awarded in action for divorce or nullity).
Agreements which do not provide for a specified support payment, as did the agreement in Posik, have been enforced. In Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979), a man induced a woman to return to his home to continue as a surrogate wife and homemaker with a promise of support for life. The court awarded her a lump-sum payment determined on the present value of the reasonable support promised her. See also Levar v. Elkins, 604 P.2d 602 (Alaska 1980) (lump-sum award for promise of support for life upheld); Mullen v. Suchko, 279 Pa. Super. 499, 421 A.2d 310 (1980) (complaint alleging contract for support for life in return for woman quitting job to travel with man stated cause of action); Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (1976). However, vague promises to provide support for life may yield nothing or not enough to justify litigation. For example, in Levar v. Elkins, Ms. Elkins's claim to lifetime support yielded a jury award of only $15,000. See also Dombrowski v. Somers, 41 N.Y.2d 858, 362 N.E.2d 257, 393 N.Y.S.2d 796 (1977) (claim that decedent promised to take care of claimant was too vague for enforcement).
Enforceability of Domestic Partnership Agreements Cases and Statutes
Alaska
Wood v. Collins, 812 P.2d 951 (Alaska 1991)
Levar v. Elkins, 604 P.2d 602 (Alaska 1980)
Arizona
Carroll v. Lee, 148 Ariz. 10, 712 P.2d 923 (1986)
Cook v. Cook, 142 Ariz. 573, 691 P.2d 664 (1984)
California
Della Zoppa v. Della Zoppa, ___ Cal. App. 4th ___, 103 Cal. Rptr. 2d 901 (2001)
Dunkin v. Boskey, 82 Cal. App. 4th 171, 98 Cal. Rptr. 2d 44 (2000)
Maglica v. Maglica, 66 Cal. App. 4th 442, 78 Cal. Rptr. 2d 101 (1998)
Byrne v. Laura, 52 Cal. App. 4th 1054, 60 Cal. Rptr. 2d 908 (1997)
Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (1976)
Colorado
Salzman v. Bachrach, 996 P.2d 1263 (Colo. 2000)
Connecticut
Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987)
District of Columbia
Mason v. Rostad, 476 A.2d 662 (D.C. 1984)
Florida
Hoffman v. Boyd, 698 So. 2d 346 (Fla. Dist. Ct. App. 1997)
Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997)
Stevens v. Muse, 562 So. 2d 852 (Fla. 1990)
Poe v. Estate of Levy, 411 So. 2d 253 (Fla. Dist. Ct. App. 1982)
Georgia
Boot v. Beelen, 224 Ga. App. 384, 480 S.E.2d 267 (1997)
Long v. Marino, 212 Ga. App. 113, 441 S.E.2d 475 (1994)
Hawaii
Maria v. Freitas, 73 Haw. 266, 832 P.2d 259 (1992)
Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990)
Illinois
Hewitt v. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204 (1979)
Spafford v. Coats, 118 Ill. App. 3d 556, 455 N.E.2d 241 (1983)
Indiana
Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App. 1980)
Maryland
Donovan v. Scuderi, 51 Md. App. 217, 443 A.2d 121 (1982)
Massachusetts
Wilcox v. Trautz, 427 Mass. 326, 693 N.E.2d 141 (1998)
Green v. Richmond, 369 Mass. 47, 337 N.E.2d 691 (1975)
Michigan
Featherstone v. Steinhoff, 226 Mich. App. 584, 575 N.W.2d 6 (1997)
Carnes v. Sheldon, 109 Mich. App. 204, 311 N.W.2d 747 (1981)
Tyranski v. Piggins, 44 Mich. App. 470, 205 N.W.2d 595 (1979)
Minnesota
Minn. Stat. 513.075, 513.076
Estate of Peterson, 579 N.W.2d 488 (Minn. Ct. App. 1998)
Roatch v. Puera, 534 N.W.2d 560 (Minn. Ct. App. 1995)
Mississippi
Davis v. Davis, 643 So. 2d 931 (Miss. 1994)
Pickens v. Pickens, 490 So. 2d 872 (Miss. 1986)
Estate of Alexander, 445 So. 2d 836 (Miss. 1984)
Missouri
Hudson v. DeLonjay, 732 S.W.2d 922 (Mo. Ct. App. 1987)
Nebraska
Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981)
Nevada
Western States v. Michoff, 108 Nev. 931, 840 P.2d 1220 (1992)
Hay v. Hay, 100 Nev. 196, 678 P.2d 672 (1984)
New Hampshire
Tapley v. Tapley, 122 N.H. 727, 449 A.2d 1218 (1982)
Joan S. v. John S., 121 N.H. 96, 427 A.2d 498 (1981)
New Jersey
Wadja v. Wajda, 239 N.J. Super. 248, 570 A.2d 1308 (App. Div. 1989)
Crowe v. De Gioia, 90 N.J. 126, 447 A.2d 173 (1982)
Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979)
New Mexico
Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (Ct. App. 1980)
New York
Silver v. Starrett, 176 Misc. 2d 511, 674 N.Y.S.2d 915 (Sup. Ct. 1998)
Soderhoim v. Kosty, 177 Misc. 2d 403, 676 N.Y.S.2d 850 (Just. Ct. 1998)
Wade v. Porreca, 99 A.D.2d 888, 472 N.Y.S.2d 482 (1984)
Morone v. Morone, 50 N.Y.2d 481, 413 N.E.2d 1154, 429 N.Y.S.2d 592 (1980)
Dombrowski v. Somers, 41 N.Y.2d 858, 362 N.E.2d 257, 393 N.Y.S.2d 796 (1977)
North Carolina
Suggs v. Norris, 88 N.C. App. 539, 364 S.E.2d 159 (1988)
North Dakota
Kohler v. Kohler, 493 N.W.2d 647 (N.D. 1992)
Ohio
Seward v. Mentrup, 87 Ohio App. 3d 601, 622 N.E.2d 756 (1993)
Oregon
Wilber v. DeLapp, 119 Or. App. 348, 850 P.2d 1151 (1993)
Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978)
Latham v. Latham, 274 Or. 421, 547 P.2d 144 (1976)
Pennsylvania
Knauer v. Knauer, 323 Pa. Super. 206, 470 A.2d 553 (1983)
Mullen v. Suchko, 279 Pa. Super. 499, 421 A.2d 310 (1980)
Baldassari v. Baldassari, 278 Pa. Super. 312, 420 A.2d 556 (1980)
Texas
Tex. Bus. & Com. Code Ann. 26.01 (agreement on consideration of nonmarital conjugal cohabitation not enforceable unless in writing)
Zaremba v. Cliburn, 949 S.W.2d 822 (Tex. App. 1997)
Small v. Harper, 638 S.W.2d 24 (Tex. App. 1982)
Utah
Layton v. Layton, 777 P.2d 504 (Utah Ct. App. 1989)
Washington
Vasquez v. Hawthorne, 99 Wash. 2d 363, 994 P.2d 240 (2000)
Marriage of Lindemann, 92 Wash. App. 64, 960 P.2d 966 (1998)
Koher v. Morgan, 93 Wash. App. 398, 968 P.2d 920 (1998)
Connell v. Francisco, 127 Wash. 2d 339, 898 P.2d 831 (1995)
Marriage of Lindsey, 101 Wash. 2d 299, 678 P.2d 328 (1984)
Estate of Thornton, 81 Wash. 2d 72, 499 P.2d 864 (1972)
West Virginia
Goode v. Goode, 183 W. Va. 468, 396 S.E.2d 430 (1990)
Wisconsin
Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987)
Steffes v. Steffes, 95 Wis. 2d 490, 290 N.W.2d 697 (1980)
Wyoming
Kinnison v. Kinnison, 627 P.2d 594 (Wyo. 1981)
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