Family Law Unraveled

The latest from Margaret's blog

Promises Promises

Wednesday, September 22, 2010

I just finished a big trial. Big because it lasted for three days and big because the issues involved are new. New for me, new for opposing counsel, new for the court. What’s involved is the break-up of a same sex relationship of 22 years, and a claim for financial compensation. If we were dealing with a married couple, this would be a no brainer. Our divorce laws are based on a social consensus that couples who commit to one another and live together and acquire assets and income during that period of commitment should share those assets and income when the marriage ends. This is the framework of the modern divorce code. So what if you can’t get married? What if you live together for 22 years and think of yourselves as an economic partnership and then the partner with the money/job/real estate/investments/pension ends the relationship? Does the partner without all that have any legal recourse?

The answer is a resounding maybe, as it’s fairly uncharted territory in Pennsylvania. In addition to same sex couples not having the protection of the divorce code, we have no civil union or domestic partnership laws either. So what we’re left with is the common law – those basic legal principles we brought with us from England. The common law cause of action which fits these circumstances is breach of contract. Not a written contract, but what’s called an “implied-in-fact” contract – a contract which can be determined from the parties’ words and conduct. Our job in representing the plaintiff in this case was to prove that a contract existed – that a promise was made, that the promise was broken, and that our client suffered damages as a result.

Because we were proceeding under a breach of contract theory, the case was not tried in family court. We were in regular civil court, where all non-family civil cases are heard, like car accidents and commercial disputes. But this was no car accident case. The emotion ran high in the courtroom as family and friends stepped up to the witness stand; there was testimony about sex, household chores, love and betrayal; there were tears and recrimination and anger. In other words, it was just like family court.

There was also discussion during the trial of a wide ranging body of law from states all over the country, including the famous 1976 California Supreme Court case of Marvin v. Marvin – remember “palimony?” Not surprisingly, California was in the vanguard in fashioning a common law breach of contract remedy for the very unmarried Michelle Marvin. Quite surprisingly, the Pennsylvania courts have been receptive to the reasoning of the Marvin case in the past. But in our case? Who knows.

No decision yet from the judge. We’re on pins and needles. Will report back.

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