Standing in the Shadows: Honoring the Contractual Obligations of Cohabitants for Support
Initially, this Comment will examine traditional theories of marital support and their relation to post-cohabitant support. Next, this Comment will review express contract, implied-in-fact contract, and quasi-contract theories of support and how these different theories have been effectively applied by various state courts. A brief discussion follows concerning federal courts and the confusion surrounding the federal jurisdiction of cohabitation actions. Finally, the contract theories of relief will be contrasted against proposed legal status solutions.Ultimately, this Comment concludes that post-cohabitation support issues are best resolved through contract theories. Solutions based on legal status are extremely intrusive and impose unbargained-for terms upon unwilling parties. In contrast, contract analysis more accu rately rewards the actual expectation and reliance interests of the parties. In particular, this Comment will argue that support should be awarded to a dependent cohabitant only if an express contract existed. In the absence of an express contract, the dependent cohabitant should only be able to recover the value of his or her services in quasi-contract in order to prevent the unjust enrichment of the supporting party. These two remedies, based on express and quasi-contract, give the courts flexibility while preserving and honoring the intent and expectations of the parties to the greatest extent possible. Consequently, state-imposed legal obligations are avoided. Alternative approaches, such as implied-in-fact contract actions or status based remedies present troubling policy concerns. With these approaches, the state often takes a more intrusive role, imposing legal obligations on parties that are contrary to their intent.
Tammy L. Lewis, Standing in the Shadows: Honoring the Contractual Obligations of Cohabitants for Support, 15 SEATTLE U. L. REV. 171 (1991).