‘Marvin’ Cases Hard to Win : Palimony Proves to Be an Elusive Pot of Gold

A decade ago a seminal decision known simply as “Marvin” gave the language a new word, “palimony,” and gave California law a new doctrine that provided live-in lovers the legal leverage to share a partner’s property when they separated.

At the time, a New York judge said Marvin would do for women’s rights what Miranda did for criminal law and what Brown vs. Board of Education did for school integration.

Courts in state after state established their own versions of the new law, and trial courts braced for a flood of litigation in a society where living together is condoned and popular.

“There are over 1,000 cases out there, so fellows beware!” cautioned attorney Marvin M. Mitchelson after he won the ruling from the California Supreme Court in December, 1976.

Sample Agreement

Initial interest in Marvin ran so high that the Beverly Hills Bar Assn., to amuse its members, even printed a sample agreement to be signed before one-night stands.

But after 10 years of watching the Marvin ruling mature, judges and lawyers experienced in litigating couples’ disputes say the flood of cases never materialized.

There was an initial flurry of palimony suits, inquiries about possible suits and requests for written cohabitation contracts. But interest later dwindled, and observers say the palimony concept has largely fallen into disuse, although specific numbers are hard to come by.

Even San Francisco family law expert Robert Kligman, who considers himself one of the most successful palimony lawyers in the state, has handled only 10 such cases in the last 10 years. “I am not sure we ever had much of a boom, but clearly from 1977 to 1982 it was popular,” said Los Angeles Superior Court Judge Christian E. Markey Jr., who monitors couples’ litigation as author of “California Family Law Practice and Procedure,” “and my sense is that it really isn’t amounting to much since.”

Contracts Still Good

Although live-in lovers have long had certain property rights, such as joint ownership of a house, Marvin for the first time said the presence of a sexual relationship would not invalidate written, oral or even implied contracts for companionship or any non-sexual services between couples. Previously, such agreements would have been tainted by the sexual relationship and outlawed as contracts for prostitution.

In the popular Marvin years, widely reported celebrity cases tested the law and titillated the public.

Michelle Triola Marvin, a singer who abandoned her career to be actor Lee Marvin’s live-in companion and even legally changed her name to his even though they never married, pursued her suit to obtain $1.8 million--half the money he made in their six years together.

Marilyn Barnett, a hairdresser turned secretary, tried to stretch the law to cover her homosexual liaisons when she sued tennis star Billie Jean King for lifetime support and a Malibu beach house.

The late Vicki Morgan, a former model who sued the late Diners Club founder Alfred Bloomingdale for $11 million, experimented even further by trying to apply the law to couples who never even lived together and were married to others at the time.

Scott Thorson, a dancer and animal trainer, added to the demand for homosexual palimony rights with his suit for $113 million against entertainer Liberace.

But the envisioned pot of gold was elusive.

Lee Marvin, a judge decided, never made an agreement to share his earnings with Michelle. No contract, no division of property.

After a state Supreme Court footnote encouraging trial judges to devise “equitable remedies,” Michelle was awarded $104,000, or the highest weekly salary she had earned as a singer for two years, to “rehabilitate” herself and become self-supporting. Higher courts overruled even that.

King Suit Dropped

In the King case, the tennis star countered with an eviction suit to regain possession of her Malibu house, and in granting that, a judge decided she had never agreed to give Barnett much of anything. Barnett dropped the palimony suit.

Morgan’s son eventually won $200,000 for written promises that Bloomingdale made to her in exchange for her hospital visits. But Judge Markey vehemently rejected her multimillion-dollar palimony claims, warning that her oral agreement had been illegal pay for sex and that the Supreme Court never intended its Marvin ruling to become a “mistresses’ recovery act.” The $200,000 jury verdict is on appeal.

In the Liberace case, another judge dismissed the palimony claims, saying that Thorson’s oral agreement, like Morgan’s, was illegal and unenforceable because it also was a sex-for-hire plan. Other portions of that suit are pending.

Following California’s lead, high courts in 38 states now recognize some form of property rights for unmarried people. Nevertheless, Legislatures have generally refused to turn the case law into statutes.

Contracts Bill

Fearing that California courts would be flooded with palimony cases, then-Assemblyman Walter M. Ingalls (D-Riverside) introduced a bill in 1979 requiring written contracts, then altered it to provide rights only for couples who had lived together at least five years or for a partner who stayed home to rear children.

When the flood of palimony (coined from “alimony for pals” by a Newsweek writer who was interviewing Mitchelson) suits never materialized, the Legislature chose to avoid the whole subject and the bill died in committee.

Reasons why the flood never occurred include:

- Marriage is “in” and, when it fails, divorce is now socially acceptable, making living together less popular. The U.S. Census Bureau has reported that the increase in cohabiting couples slowed after 1980 and showed no increase from 1984 to 1985. The number had tripled during the 1970s, but has now leveled out at 2 million households.

“Marriage is kind of the ticket these days,” Markey said, “and just living together and trying to adopt that life style that gives one (contract) rights and benefits really isn’t all that significant between heterosexual couples.”

- Educated by publicity about Marvin, couples are more likely to make oral (and occasionally written) agreements about property and simply divide it without resorting to court action when they break up. Alternately, they recognize they have no agreement and don’t bother with futile suits.

Family law specialist Ira H. Lurvey said today’s couples seem to be talking to each other more than ever before, even about sharing income and property.

“The first element of real love is candor,” he said. “The ultimate romanticism is sharing the pragmatics in life.”

“Marvin was very faddish,” agreed family law specialist Arlene Colman-Schwimmer. “People have become much more alert to the problem and much more sophisticated in making their own agreements.”

- Palimony suits are expensive to litigate and very hard to win.

Under civil rather than family law, they can take five years rather than 18 months to get to trial, and they provide no payment of attorney fees from community property. Few lawyers will handle the cases on a contingency basis, and the plaintiff--the less wealthy half of the couple--can rarely afford the attorney fees.

The Marvin and King cases made clear the difficulty of proving the existence of any written, oral or implied contract to share earnings. And the Bloomingdale and Liberace cases underscored the second peril--proving that an agreement was based on services other than sex.

“The problem was that lay people--and I had to go a few rounds with clients over this--thought if a woman lived with a man for a while she had an absolute right to collect,” said family law specialist Maryanne La Guardia.

“As long as people thought there was going to be a pot of gold at the end of the rainbow, they were willing to pursue it. But now lawyers are being more careful. They have learned it is such a crap-shoot they are just not filing them.”

Cohabiting Not Enough

“The public perception was that if you lived with somebody you could collect money,” said Arthur J. Crowley, a family law specialist for 38 years who refuses to represent palimony plaintiffs because he doubts that lovers ever make property agreements. “That was not true. I really think Marvin is fairly passe.”

Hillel Chodos, who successfully defended the Bloomingdales against Morgan’s palimony claims but who has rejected all other palimony clients, insists that Marvin established little if any new contract law and could never satisfy cohabiting couples.

“People are usually after things the court can’t give them,” he said. “Like revenge, justification. They are angry because the person they picked turned out to be a turkey.”

Dennis M. Wasser, who successfully defended Billie Jean King, said that emotions do play a big part in litigants’ unwillingness to pursue lengthy, expensive palimony cases.

“The immediate anger after a breakup dissipates over a number of years,” he observed. “In divorce you can get into court three or four weeks after filing for a temporary order and finish the whole thing in 6 to 12 months. Marvin takes five years. People don’t stay quite mad enough to pay the attorney fees for all that time.”

Divorce, Palimony

Originally, one of the major uses for Marvin was expected to be “tacking,” or combining a palimony complaint with a divorce for couples who had lived together, married, and then divorced. The procedure was helpful in persuading judges to award larger support payments because of the total time the couple had been together.

Although Wasser defends clients from Marvin claims joined to divorce petitions in about 25% of his cases, he agreed with Judge Markey that even that use of Marvin is declining.

Marvin may be moribund, but nobody considers it dead.

“The law is there. The case still exists and it is just a matter of whether people have the facts to utilize it,” said Los Angeles Superior Court Judge Stephen Lachs, who supervises the family law section of the nation’s largest trial court.

Mitchelson, who won the landmark ruling, staunchly agrees. He sees Marvin as alive and well and growing.

“It is not as publicly accepted as I would have hoped,” he said, “but it is reality and it is there for the cases that qualify.”

He cited recent rulings by California appellate courts granting unmarried partners:

- Inheritance rights, permitting a man to receive his partner’s assets after her death.

- Unemployment insurance when a woman quit her job to “preserve the family unit” by moving to New York with the father of her child.

The courts also are flirting with giving live-in couples the same right that married partners have to sue third parties for loss of consortium (services expected from a spouse, such as housekeeping, companionship and sex) when partners are injured or killed.

Markey agrees that the growing area of Marvin law is cohabitants’ rights against third parties, rather than against each other.

Experts no longer question whether Marvin should apply to homosexual as well as heterosexual couples, a possibility far more palatable now than 10 years ago,

“As long as homosexuals have an agreement that is based on cooking and cleaning rather than sex, Marvin should work for them,” said family law attorney Suzanne Harris.

Affairs Are Different

But the same experts are reluctant to apply Marvin principles to couples having extramarital affairs while still legally linked to husbands or wives.

Mitchelson, who initiated the Bloomingdale case but who was fired by Morgan just before Markey tossed it out, believes that case could have established mistresses’ rights.

“Judge Markey,” he said with some frustration, “just made the wrong decision.

“The main reason a man will stay with a mistress is the companionship, the overall relationship. If he wants only sex, he will get a hooker.”

Defending his Marvin victory after its 10 years of evolution, Mitchelson dismissed criticism with the same bravado he exuded Dec. 27, 1976:

“Every judge recognizes the Marvin concept. Every law school knows it. It is a landmark decision. It is legend. It is recognized all over the world.”