The Truth About Common Law Marriage & “Palimony” in California

Kathy Minella Domestic Partnerships

It may surprise you to know that there is no such thing in California as common law marriage, or to be more accurate, a common law marriage can never be created in California.  It’s widely believed that if a couple lives together for many years and holds themselves out to the world as a married couple, then the couple will be considered to be legally married.  While this can be possible according to the laws of a few states, California abolished common law marriages over a hundred years ago.  California will, however, recognize common law marriages that were created in states which do recognize them. 

Even though California did away with common law marriage, couples who live together may still have rights to financial support and property division as if they had been legally married, but only under strict circumstances.  In these cases, if one or both persons in the relationship had a reasonable and good faith belief that they had entered into a valid marriage, but it turned out the marriage was void, then that person can be considered a “putative spouse.”  To be given the status of a putative spouse, it’s legally not enough to say that you simply believed you had a common law marriage.  Instead, the couple must have actually gone through the motions to get married, yet had something go wrong when trying to comply with the legal requirements for marriage (often this happens when one person was in a prior marriage and mistakenly thought that he or she was legally divorced).  Not only that, but this good faith belief that you’re married must continue throughout the marriage, if you find out that the marriage is invalid, then you lose putative status.  Recently, it was also established that these same principles can be applied to couples who were in an unregistered domestic partnership.  A person with putative spouse status will be entitled to share in property acquired during the invalid marriage or domestic partnership under our community property laws, and to any spousal support that’s required once the relationship is terminated.  A putative spouse may also have marital-type rights in other situations as well, such as workers compensation or retirement benefits.

A second category involves the rights of unwed couples who aren’t putative spouses (because they never tried to get married), but had an agreement to treat assets like community property or promised lifetime support, despite the fact that both partners knew they were not married.  Here, no one is entitled to support or property rights under California family law, but there can be rights created under the oral or written contract.  One person may have promised to provide support for the other that’s similar to spousal support (alimony), and this has come to be known as “palimony.”  These palimony actions started in the early 1970s after actor Lee Marvin (think The Dirty Dozen and Cat Ballou) broke up with his girlfriend Michelle Triola who he had lived with for several years.  After the break up, Triola took Marvin to court claiming that he had orally promised to financially support her for the rest of her life in exchange for her giving up her own acting career to take care of him.  Marvin denied he ever made that promise, and in the end, Triola lost her case, but in the process, the California Supreme Court had established the rights of unmarried cohabitants.  The problem for Triola, and many since, is that it can be very hard to prove the terms of an oral agreement.  For this reason, it’s important to put promises into writing and couples who live together without getting married or entering into a domestic partnership should be forewarned.  Many of these troublesome issues can be resolved with a written “cohabitation agreement” to help protect your interests if the relationship dissolves.  As the two of you contribute toward your financial future together, a cohabitation agreement can set out fair arrangements regarding property ownership and division, and any support, similar to how a prenuptial agreement works.  If you lived together before getting married, then both a civil palimony lawsuit and family court divorce (dissolution) action may be necessary, but note that palimony suits must be brought within a certain time period after the agreement is broken to prevent your claim from being barred.  Our skilled family law attorneys can prepare an effective and comprehensive cohabitation agreement, or pursue your rights and protect your assets in a putative spouse partition action or a palimony lawsuit.  To reach Minella Law Group, call (619) 289-7948.

Kathy MinellaThe Truth About Common Law Marriage & “Palimony” in California