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Support and Property Rights upon Dissolution of a Nonmarital Relationship

Issues regarding property division and support are not unique to divorce proceedings. Although a valid marriage is generally required to obtain legally enforceable claims to support and marital property upon divorce or dissolution of the marriage, most jurisdictions recognize the property rights of a party to an invalid marriage who entered the relationship in good faith and did not know that his or her marriage was invalid. Additionally, some jurisdictions even recognize certain property rights of parties who were aware that their marriage was invalid. A divorce attorney who is knowledgeable about the laws governing nonmarital relationships in your state can work with you to ensure that your support and property rights are protected.

What is a nonmarital relationship?

In general, a nonmarital relationship is one in which two people who are not legally married to each other live together (cohabitate) in a marriage-like relationship. The existence, scope, and nature of a party’s support and property rights often depend on the circumstances of the nonmarital relationship. There are many types of nonmarital relationships, including domestic partnerships, civil unions, same-sex marriages, and invalid or illegal marriages, and the legal rights and obligation associated with each type vary by jurisdiction. This article will focus on nonmarital relationships that arise out of an invalid marriage.

What is an invalid marriage?

A marriage may be invalid because of some technical defect, because it was illegal at the time of marriage (one party was underage, for example), or because the parties are not capable of forming a legal marriage (either party is already married or the parties are too closely related, for example).

What is a putative marriage?

A putative marriage is a relationship intended to be a marriage and entered in good faith by at least one of the parties but which is invalid for some reason. A putative spouse, although not legally married, possesses all the rights of a legal spouse, including the right to share in marital property. Putative marriages are not formally recognized in all jurisdictions, and legal requirements to establish a putative marriage vary by jurisdiction.

Do unmarried cohabitating couples have any property rights or the right to receive compensation for services or support provided during the relationship?

The general rule is that unmarried cohabitating couples do not have a claim to property acquired during the relationship. However, depending on the jurisdiction in which relief is sought, nonmarital couples may be entitled under other legal theories to a share in certain property (real estate, professional degrees and licenses, business property and goodwill) or receive palimony / compensation for household services, business-related services, or other services or support provided during the marriage. Legal theories independent of divorce or based on general principles of law include:

  • The putative spouse doctrine. Under this theory, a party who meets the definition of a putative spouse acquires the same property rights as a legal spouse.
  • Equity. Under this theory, a court will use equity’s inherent power to ensure fairness and grant equitable relief to an innocent party. A constructive trust is a type of equitable relief that may be appropriate.
  • Partnership law. Some courts will treat a nonmarital relationship as a partnership, quasi-partnership, or joint venture and apportion property accordingly.

How will the court apportion the property?

How property acquired during a nonmarital relationship is apportioned depends on the jurisdiction in which relief is sought, the nature of the nonmarital relationship, the type of property for which distribution is requested, and any agreements between the parties.

In the absence of an agreement between the parties, a court may order:

  • Unequal distribution. Relying on equity’s inherent power to ensure fairness, a court may order unequal distribution of property to ensure fairness.
  • Equal distribution. A court may order equal distribution (50/50) of all property acquired during the relationship.
  • Partition. Depending on the circumstances under which real property was acquired, a court may treat the parties as tenants in common or joint tenants and partition the property accordingly.
  • Distribution by statute. If a nonmarital relationship is recognized as a putative marriage, a court may order distribution as if the terminated relationship had been a legal marriage. This type of distribution is typically called equal division in community property states and equitable distribution in all other states.

A court may order distribution based on an explicit or implied agreement between the parties.

  • Explicit agreement. When there exists an explicit agreement or contract between the parties regarding property or services, a court may order property distribution or support based on the terms of the agreement to the extent there is consideration beyond a sexual relationship.
  • Implied agreement. When an agreement or contract to share property is not explicit but its existence can be proven, a court may find an implied contact and order distribution accordingly. Evidence that the parties cohabitated, held themselves out as married and treated each other as spouses are insufficient to prove an implied agreement to share property, but such evidence may be considered by the court.

Can a party recover property acquired before the relationship?

A party may be able to recover property conveyed or transferred to the other party during the relationship but acquired before the relationship if the party who transferred the property:

  • Was innocent (that is, he or she did not know that the marriage was invalid at the time of the transfer) and
  • Can prove that transferred property was separately owned prior to the relationship.

Can a party recover property acquired during the relationship with the funds of only one of the parties?

A party may be able to recover property acquired during the relationship with his or her own funds but which is titled in the name of the other party. In such situations a court may impose a constructive trust. A constructive trust, sometimes called a resulting trust, an implied trust, or an involuntary trust, is a type of equitable remedy often used to prevent unjust enrichment and may be used to prevent a party from retaining property that he or she did not purchase.


People who wish to terminate their nonmarital relationship should understand that they do not have the same support or property rights as legally married couples who choose to divorce. If you wish to terminate your marriage-like relationship and you are unmarried or erroneously but in good faith believed that your marriage was valid, a knowledgeable divorce lawyer in your state can work with you to ensure that you obtain all property and post-relationship support to which you are entitled.

Copyright © 2011 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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Corry & Corry, P.C.
4914 Radford Avenue
Suite 208
Richmond, VA 23230

Phone: 804-254-1026
Fax: 804-254-1029
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