“Palimony” or Common-law Marriage In Florida?

Extramarital Cohabitation Agreements Are Enforceable In Florida

Many people ask if there is a recourse for division of assets or alimony arising out of the break up of a non-marital relationship.  This type of legal action is  usually termed  “palimony” (the most famous involving actor Lee Marvin in the early 1970’s) and involves an unmarried relationship’s former partner suing the other partner in order to obtain a share of the property accumulated during the relationship as well as payments to compensate for domestic services rendered during the course of the cohabitation.  In Florida there is no recognized right of an alimony-like award of funds arising out of a non-marital relationship.  However, if there had been some contract between the individuals, such as a written, pre-nuptial-like agreement, or even an oral agreement during the relationship, that would be enforceable as any other contract.  In the Tampa area appeals case of Crossen v. Feldman, 673 So.2d 903 (2DCA 1996), it was decided that an unmarried couple who orally agreed to specific terms for their unmarried relationship could have a legally enforceable contract and that the woman could enforce the agreement as a contract where she had quit her job, agreed to have a child and live with the man in exchange for monetary support.

Same-sex “Palimony” Under a Valid Cohabitation Agreement?  Same Result.

Another Florida case deciding the same outcome for an unmarried couple is even more interesting because it involved a same-sex couple.  In the Florida appellate case of Posik v. Layton, 695 So.2d 759 (5DCA 1997), the parties were a physician and a nurse at the same hospital, where they met. Posik, the nurse, agreed to quit her job and move to another county to live with the physician, Layton, and to perform domestic services for life.  In exchange, Layton agreed to monetary support for life of Posik and if the two remained together until Layton died, to leave the estate to her.  After the two parties broke up and Layton refused to pay, Posik sued under the written agreement.  The appellate court found that the agreement was just as enforceable as any other contract would be.

There Are Strict Legal Requirements For Cohabitation Agreements

Anyone considering a long-term cohabitation arrangement with a romantic partner without getting married should insist upon entering into a valid cohabitation agreement.  Such an agreement should be in writing, and if real estate, probate matters or actions meant to last for more than one year are covered in the agreement, they must meet certain legal requirements, such as being made in writing, witnessed by at least two witnesses and notarized.

Oral agreements can be enforced as contracts also, although they must be provable and must not fall within one of several exceptions of the law which invalidate an oral agreement.  Such an oral contract would have to be provable and legally sufficient to be enforceable.  If the couple had made oral agreements which are capable of proof as to splitting property or for future payments, then a Florida court would recognize those matters under contract law or property law, subject to the same exceptions noted above, particularly as to agreements involving real estate, probate and actions meant to last for more than one year.

Domestic Services Must Not Include Sexual Services!

It is also very important that any cohabitation agreement clearly specify the terms of the agreement as to what duties the contract call for and that none of those duties involve sexual acts, or as the law terms them “meretricious services”.  Because any cohabitation agreement which contemplated payments or property divisions based even partly upon sexual services would constitute unlawful prostitution, such contracts would be considered repugnant to Florida social policy and unenforceable by the courts.

Even if no formal contract or agreement was entered into before or during the course of the relationship, a former romantic partner may be able to obtain a division of property or assets if the couple had entered into mutual business dealings, joint property ownership or had materially contributed to payments or improvements to real property.

Make Them In Writing, With Full Financial Disclosure, Witnesses and With The Help and Advice of Attorneys

Because cohabitation agreements are often meant to provide for significant and life-long terms and often involve one party giving up employment, relocating and agreeing to provide long-term domestic services as well as make monetary contributions to the residence and support of the other partner, such agreements should always be carefully drafted in writing with the help of an experienced attorney.  In addition in order to prevent future claims of duress or unconscionable fraud in inducing the partner to sign the agreement, it is important that fair and reasonable financial disclosure of both assets and debts and obligations be made by each party to the other before the agreement is signed.  Both parties should ideally have the agreement reviewed by their own attorneys also.  Although these precautions often seem like over-kill at the time of entering into such agreements, they are essential to prevent future attacks on the validity of the agreement.

Common Law Marriages in Florida?

Common law marriage is not recognized under Florida law, except in certain circumstances.  A common law marriage is one in which the parties are not formally married, but they have lived together for a certain period of time and, importantly, have held themselves out as husband and wife to the community.  Common law marriages have been abolished in Florida, however certain other states still recognize them.  Although in Florida law a common law marriage does not exist, Florida courts will still recognize a common law marriage that was validly entered into in another state.  However, the limited legal situations in which Florida courts will recognize even an out of state common-law marriage would not include family law actions such as divorce, alimony or equitable distribution of property.  But just the same as with other non-marital domestic relationships as mentioned above, many of the same benefits of a recognized common-law marriage can be provided for by a carefully planned and drafted cohabitation agreement.

Have An Experienced Attorney Prepare and Review Your Cohabitation Agreement

Family law attorney Garry Potts has practiced law in the Tampa Bay area for over 23 years as a former prosecutor, insurance defense attorney and a private practice trial lawyer.  His practice is focused on litigation matters involving family law, personal injury, criminal defense and commercial litigation.  Let Garry Potts handle your family law matters by calling 727-538-4166 today or click here for email to schedule a low-cost initial consultation.

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One Response to “Palimony” or Common-law Marriage In Florida?

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