Classification: Not Marital Property
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Most dual-classification states define marital property as property acquired during the marriage. Property acquired during a period of premarital cohabitation is clearly not acquired during the marriage. The general rule is, therefore, that property acquired during premarital cohabitation is not marital property. See Harrelson v. Harrelson, 932 P.2d 247 (Alaska 1997) (error to treat premarital cohabitation period as part of marriage); Rhodes v. Rhodes, 867 P.2d 802 (Alaska 1994) (fishing gear acquired before marriage was initially separate property, even though parties were living together and wife was pregnant at the time; remanded to consider whether gear had transmuted into marital property during the marriage); Crouch v. Crouch, 88 Ill. App. 3d 426, 410 N.E.2d 580 (1980); Wilen v. Wilen, 61 Md. App. 337, 486 A.2d 775 (1985); Simoneau v. Simoneau, 693 A.2d 1135 (Me. 1997) (error to treat property acquired during cohabitation as marital asset); Williams v. Williams, 645 A.2d 1118 (Me. 1994) (error to hold that property was entirely marital, where down payment was made from funds acquired during cohabitation; funds were separate property); Grishman v. Grishman, 407 A.2d 9 (Me. 1979); Reeves v. Reeves, 226 Mich. App. 490, 575 N.W.2d 1 (1997); Cummings v. Cummings, 376 N.W.2d 726 (Minn. Ct. App. 1985); Bunyard v. Bunyard, 828 So. 2d 775 (Miss. 2002); In re Marriage of Nored, 971 S.W.2d 328 (Mo. Ct. App. 1998); Colborn v. Colborn, 811 S.W.2d 831 (Mo. Ct. App. 1991); Mangone v. Mangone, 202 N.J. Super. 505, 495 A.2d 469 (Ch. Div. 1985); McIver v. McIver, 92 N.C. App. 117, 374 S.E.2d 144 (1988); Smith v. Smith, 749 A.2d 921 (Pa. Super. Ct. 2000); Estep v. Estep, 326 Pa. Super. 404, 474 A.2d 302 (1984).
In Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002), the court held that premarital cohabitation can be considered in determining the marital share of a pension. The court relied upon Murray v. Murray, 788 P.2d 41 (Alaska 1990), which held only that premarital contributions can be considered as a division factor. It did not discuss or even cite Harrelson and Rhodes, both of which held that property acquired during premarital cohabitation cannot be classified as marital. Since determining the marital share of a pension is clearly a classification issue, the court’s holding is inconsistent with prior cases. If a pension acquired during cohabitation can be marital property, why not a home or car or fishing gear? There are valid policy reasons both for and against treating property acquired during cohabitation as marital property, but the courts should not be applying a different rule on this point to different types of assets.
While property acquired during cohabitation is generally not marital, there are several exceptions to the general rule.
Contemplation of Marriage. Older case law in Illinois, Missouri, and New Jersey holds that property acquired in contemplation of marriage can be treated as marital. See In re Altman, 35 Colo. App. 183, 530 P.2d 1012 (1974); In re Olbrecht, 232 Ill. App. 3d 358, 597 N.E.2d 635 (1992); In re Jacks, 200 Ill. App. 3d 112, 558 N.E.2d 106 (1990); In re Click, 169 Ill. App. 3d 48, 523 N.E.2d 169 (1988); In re Malters, 133 Ill. App. 3d 168, 478 N.E.2d 1068 (1985); Stallings v. Stallings, 75 Ill. App. 3d 96, 393 N.E.2d 1065 (1979); Colborn v. Colborn, 811 S.W.2d 831 (Mo. Ct. App. 1991); F.W.H. v. R.J.H., 666 S.W.2d 910 (Mo. Ct. App. 1984); Weiss v. Weiss, 226 N.J. Super. 281, 543 A.2d 1062 (App. Div. 1988) (resolving a split in trial court authority); Coney v. Coney, 207 N.J. Super. 63, 503 A.2d 912 (Ch. Div. 1985); Raspa v. Raspa, 207 N.J. Super. 371, 504 A.2d 683 (Ch. Div. 1985). But cf. In re Hacker, 239 Ill. App. 3d 658, 606 N.E.2d 648 (1992) (home purchased two months before marriage would be marital only if the husband intended to give it to the marital estate).
This theory applies only where the nonowning spouse proves that the asset was acquired in specific contemplation of marriage. Colborn. Most of the cases involve property purchased a very short time before the ceremony. See In re Schriner, 88 Ill. App. 3d 380, 410 N.E.2d 572 (1980) (several days); Stallings v. Stallings, 75 Ill. App. 3d 96, 393 N.E.2d 1065 (1979) (two months); cf. Berrie v. Berrie, 252 N.J. Super. 635, 600 A.2d 512 (App. Div. 1991) (sufficient if asset was acquired in contemplation of creating marital partnership; parties need not contemplate marriage per se). Evidence that the parties together selected the asset is also important. See Olbrecht (husband’s interest in home was purchased in contemplation of marriage, where wife accompanied husband on house-hunting trips, even though husband took title jointly with his aunt). Where the time period between acquisition and marriage is more than a few months, the rule often does not apply. See In re Reeser, 97 Ill. App. 3d 838, 424 N.E.2d 45 (1981) (asset purchased eight months before marriage was separate property); In re Leisner, 219 Ill. App. 3d 752, 579 N.E.2d 1091 (1991) (home bought 19 months before marriage was separate property; wife intended at that time to marry husband, but husband did not then intend to marry wife); cf. Colborn v. Colborn, 811 S.W.2d 831 (Mo. Ct. App. 1991) (parties are not necessarily contemplating marriage merely because they are living together).
The contemplation-of-marriage doctrine as followed in the above decisions is flawed. It has never been adopted outside of the three states listed, and even in those states most of the case law is more than 10 years old. The basic problem with the doctrine is that it reaches illogical results when property is acquired in contemplation of marriage with separate funds. Assume, for example, that a home is purchased outright with separate property. If the home is purchased one day after the marriage, there is general agreement that the home is separate property. If the home is purchased one day before the marriage, however, it would be marital property under the law of the above three states. What justification can there possibly be for recognizing the separate interest only if the property was acquired after the marriage? Should the argument for separate classification not be stronger when the property was acquired before the marriage? There are no good answers to these questions, and that is why the contemplation-of-marriage doctrine has been unpopular.
It should also be noted that none of the above decisions has been particularly perceptive in defining acquired. The strong general rule is that property is acquired when its real value is created, so that a home acquired with a separate property down payment is partly marital property if marital funds were used to pay the mortgage. Brett R. Turner, Equitable Distribution of Property 5.09-5.10 (2d ed. 1994 & Supp. 2002). Many of the above decisions implicitly assumed that the home was acquired when legal title passed, so that a home purchased before the marriage with a small down payment would normally be separate property, and the contemplation-of-marriage doctrine would be applied to fix the resulting inequity. That inequity certainly should be fixed, but the proper repair is a more perceptive definition of acquired.
Two recent decisions hold that property acquired in contemplation of marriage is treated as if it had been acquired during the marriage. Thus, the courts refused to hold that the entire asset was the titleholder’s separate property merely because title passed before the marriage. But neither court held that the entire property was marital; instead, both courts held that a separate interest arose from separate contributions, just as would occur if the same separate contributions had been made to the same asset after the date of the marriage. See Koehler v. Koehler, 182 Misc. 2d 436, 697 N.Y.S.2d 478 (Sup. Ct. 1999); Boggins v. Boggins, 2002 WL 1371194 (Ohio Ct. App. 9th Dist. 2002). This more-limited version of the contemplation-of-marriage doctrine does not reach illogical results, and it will be interesting to see if it continues to grow in popularity.
Joint Title. What happens when the parties have acquired property in joint title before the marriage? Technically, each spouse owned 50% of the property on the date of the marriage, so the property should be 50% the separate property of each spouse. But this result is odd and inflexible, particularly where the parties were functioning as an economic partnership before the formal date of the marriage. Courts generally agree that a gift to both spouses from a third party is a gift to the marital estate and therefore marital property, not two distinct gifts of property to each spouse’s separate estate. Turner, supra, 5.17. Applying the same reasoning, it can be argued that property acquired in joint title before the marriage should be marital.
The developing trend is to accept this argument. Missouri has twice held that property acquired in joint title before the marriage is marital. See Booth v. Greene, 75 S.W.3d 864 (Mo. Ct. App. 2002); Cuda v. Cuda, 906 S.W.2d 757 (Mo. Ct. App. 1995). An Ohio appellate court and a New York trial court treated a home acquired in joint title in contemplation of marriage as if it had been acquired during the marriage. Koehler v. Koehler, 182 Misc. 2d 436, 697 N.Y.S.2d 478 (Sup. Ct. 1999); Boggins v. Boggins, 2002 WL 1371194 (Ohio Ct. App. 9th Dist. 2002). But another New York trial court held that personal property acquired jointly before the marriage was 50% the separate property of each spouse. Brownell v. Brownell, 168 Misc. 2d 1038, 646 N.Y.S.2d 221 (Sup. Ct. 1996). Koehler relied expressly upon the fact that the home was acquired in contemplation of marriage; the remaining cases did not stress this fact openly.
Common-Law Marriage. If the cohabitation meets the requirement for an enforceable common-law marriage, the parties were actually legally married, and property acquired during the cohabitation was acquired during the marriage. See Lyon v. Lyon, 86 Ohio App. 3d 580, 621 N.E.2d 718 (4th Dist. 1993); Standefer v. Standefer, 26 P.3d 104 (Okla. 2001); Kelley v. Kelley, 9 P.3d 171 (Utah Ct. App. 2000). Common-law marriages are recognized in only a small number of states, but a common-law marriage contracted in one of those states must be recognized in other jurisdictions. Nadine E. Roddy, Interstate Recognition of Common Law Marriages, 9 Divorce Litigation 200 (1997). Requirements for a common-law marriage vary somewhat, but the parties must normally have a present agreement to be husband and wife, followed by cohabitation, and the parties must demonstrate their intent by objectively holding themselves out as husband and wife. Id.
Ohio. A unique provision of Ohio law gives the court flexibility to hold that the time period "during the marriage" shall begin before the actual date of the marriage. Ohio Rev. Code Ann. 3105.171(A)(2)(b) (WESTLAW 2003). Thus, it is apparently possible for an Ohio court to determine that the "marriage" started for equitable distribution purposes when the parties began cohabiting. See Long v. Long, 2003 WL 491266 (Ohio Ct. App. 3d Dist. 2003); D’Hue v. D’Hue, 2002 WL 31401993 (Ohio Ct. App. 8th Dist. 2002). One Ohio court refused to exercise this authority in a situation in which both parties were married to other people when their relationship started. Abernethy v. Abernethy, 2002 WL 1880142 (Ohio Ct. App. 8th Dist. 2002).
Kansas and Washington. Kansas and the State of Washington allow the equitable division of property between cohabiting persons, even if they never marry. Given this fact, there is obviously no reason not to divide property acquired during cohabitation if the parties do marry. See Eaton v. Johnston, 235 Kan. 323, 681 P.2d 606 (1984); In re Marriage of Pearson-Maines, 70 Wash. App. 860, 855 P.2d 1210 (1993).
All-Property Jurisdictions. In all-property states, the court is permitted to divide all property owned by either spouse, regardless of how and when it was acquired. In states where premarital property can normally be divided, there is, of course, no obstacle to dividing property acquired during premarital cohabitation. See Malek v. Malek, 7 Haw. App. 377, 768 P.2d 243 (1989); Hendricks v. Hendricks, 784 N.E.2d 1024 (Ind. Ct. App. 2003); Larkins v. Larkins, 685 N.E.2d 88 (Ind. Ct. App. 1997); Chestnut v. Chestnut, 499 N.E.2d 783 (Ind. Ct. App. 1986); Moriarty v. Stone, 41 Mass. App. Ct. 151, 668 N.E.2d 1338 (1996); Northrop v. Northrop, 622 N.W.2d 219 (N.D. 2001); Kautzman v. Kautzman, 585 N.W.2d 561 (N.D. 1998); In re Marriage of Troffo, 151 Or. App. 741, 951 P.2d 197 (1997); Wall v. Moore, 167 Vt. 580, 704 A.2d 775 (1997).
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