Cohabitation as a Division Factor
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While property acquired during cohabitation is normally not marital property, the majority rule is that the court may consider contributions made by the parties during a period of premarital cohabitation as a factor in dividing other marital assets. A Virginia court explained:

We hold that Code 20-107.3 does not prevent the trial court from considering premarital contributions to the acquisition or maintenance of property later deemed marital property in fashioning an equitable distribution. In fact, subsections (E)(2) and (6) clearly require consideration of "[t]he contributions . . . of each party in the acquisition and care and maintenance of such marital property" and "[h]ow and when specific items of such marital property were acquired." Subsection (10) allows consideration of "[s]uch other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award." Therefore, to disregard the parties’ contributions to the acquisition and maintenance of the property and how and when they acquired rights and equities in the property whether pre- or post-marital is to disregard the mandate of the statute. Nothing in Code 20-107.3 limits consideration of the various subsection (E) factors to the time frame of the marriage.

Floyd v. Floyd, 17 Va. App. 222, 226-27, 436 S.E.2d 457, 460 (1993). The decisions generally reject the argument that using cohabitation as a division factor discourages marriage or reinstates common-law marriage:

Defendant also argues that if we affirm the lower court’s decision, then we will condone unmarried cohabitation, reinstitute common-law marriage, and undermine the integrity of the institution of marriage. We find no merit in this argument. Defendant’s reliance on cases involving unmarried parties is misplaced. Here, the parties were married.

Nielsen v. Nielsen, 179 Mich. App. 698, 700-01, 446 N.W.2d 356, 357 (1989).

For additional specific cases following the majority rule, see Harrelson v. Harrelson, 932 P.2d 247 (Alaska 1997); Murray v. Murray, 788 P.2d 41 (Alaska 1990); Anderson v. Anderson, 591 A.2d 872 (Me. 1991); In re Marriage of Rolf, 303 Mont. 349, 16 P.3d 345 (2000); McGee v. McGee, 277 N.J. Super. 1, 648 A.2d 1128 (App. Div. 1994); In re Marriage of Gilbert-Walters, 177 Or. App. 133, 33 P.3d 709 (2001) (where parties substantially commingled their finances during cohabitation); In re Dubnicay, 113 Or. App. 61, 830 P.2d 608 (1992); and Meyer v. Meyer, 239 Wis. 2d 731, 620 N.W.2d 382 (2000) (reversing contrary lower court case law).

A small minority of states might refuse to consider premarital contributions as a division factor. This result was clearly reached in Greenwald v. Greenwald, 154 Wis. 2d 767, 454 N.W.2d 34 (Ct. App. 1990), which held that such consideration would be tantamount to allowing equitable distribution without marriage. But Greenwald was emphatically overruled in Meyer, which held that the policy against equitable distribution without marriage did not apply because the parties actually did eventually marry.

There may be language in some of the opinions rejecting the actual division of property acquired during cohabitation that could be used to argue against consideration as a division factor. But a number of states which follow the majority position on classification have quite expressly followed a different rule on use as a division factor. E.g., Floyd; Anderson. The clear majority position is that the classification and division issues are different. Positive authority on the first issue, therefore, may not be positive authority on the second issue.

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