The Law of Cohabitantsí Rights
National Legal Research Group, Inc.)
In most situations, property acquired during cohabitation is not marital property. But under the developing law of cohabitantsí rights, the parties might well have had rights to a share of that property if they never married.
If such property rights existed previously, are they lost when the parties marry? There is no general reason why they should be lost, and most of the cases hold that they can be raised in a later divorce action. See Roden v. Roden, 190 Ariz. 407, 949 P.2d 67 (Ct. App. 1997) (claim under law of cohabitantsí rights can be raised in divorce action); In re Jones, 451 N.W.2d 25 (Iowa Ct. App. 1989) (considering claim of constructive trust based on premarital improvements; ultimately finding that the elements of the doctrine were not met); In re Marriage of Estep, 978 S.W.2d 817 (Mo. Ct. App. 1998) (enforcing express or implied agreement to share assets acquired during cohabitation); Colborn v. Colborn, 811 S.W.2d 831 (Mo. Ct. App. 1991) (considering claim to assets acquired during cohabitation under law of implied contract, but rejecting the claim on the facts); Glaspy v. Glaspy, 143 N.C. App. 435, 545 S.E.2d 782 (2001) (property acquired in joint ownership before marriage was 50% the separate property of each spouse, but remanding case for consideration of a constructive trust claim); Rolle v. Rolle, 219 N.J. Super. 528, 530 A.2d 847 (Ch. Div. 1987).
Equitable distribution is always the preferred remedy for recognizing premarital contributions. Thus, causes of action under the law of cohabitantsí rights might be lost to the extent that equitable distribution law recognizes the same contributions. See, e.g., Knecht v. Knecht, 629 So. 2d 883 (Fla. Dist. Ct. App. 1993) (error to use constructive trust to compensate wife for her premarital contributions, where those contributions could be recognized as wifeís separate property under equitable distribution law). In most situations, however, equitable distribution will not permit the recognition of premarital contributions, and in these situations the law of cohabitantsí rights should continue to be relevant.
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