James R. Balmforth: Family Lawyer Orem Utah

Some couples don’t recognize the legal and financial benefits that can accompany marriage. In contrast, marriage is financially unattractive for some couples. If the wife currently receives Social Security payments based on the earnings record of her late husband, in some circumstances, remarriage could cause the payments to end. If those Social Security payments are greater than anything the second husband can offer financially, the woman may prefer unmarried cohabitation to marriage.

Moreover, some committed cohabitants intentionally reject marriage to avoid its financial obligations. Some couples choose cohabitation over marriage to preserve their individual rights and benefits and to protect their assets for children from earlier marriages. For couples like these, cohabitation is not the result of an informal decision or something that just happened over time; instead, it is a deliberate choice to avoid marriage and its financial consequences. Emotionally, these couples may be just as committed as any married couple. They may have exchanged rings. They may put part of their assets in a shared bank account. Even so, they have chosen cohabitation as an alternative to—and not merely a substitute for—marriage.

If you want to choose cohabitation over marriage, speak to an experienced Orem Utah family lawyer to know your rights in Utah.

Is It Cohabitation or Marriage?

Determining whether a survivor was the decedent’s cohabitant is not simple. On rare occasions the law may conclude that someone who initially appears to be a surviving cohabitant is in fact a surviving spouse—or should be treated like a surviving spouse.

In a few states, a man and woman can become husband and wife even though they never participate in a legally valid marriage ceremony. The common-law marriage—long a source of intrigue and melodrama in books and movies—is not entirely a relic. If a surviving partner can prove her common-law marriage to the decedent, she becomes a surviving spouse and receives the full panoply of spousal property and probate benefits under state law. Among the common probate benefits are the right to an intestate share or an elective share. She receives statutory priority among the potential appointees as administrator for the decedent’s intestate estate. She also receives homestead and personal property exemptions as well as a family allowance. As an heir of the decedent, she has standing to contest his will if one exists. However, Utah does not recognize common law marriages. You have to petition the court to have your relationship recognized as a marriage. Seek the assistance of an experienced Orem Utah family lawyer to file this petition. If you don’t seek to have your common law marriage recognized in Utah, it will be legally treated as a cohabitation relationship.

The Cohabitant as Creditor or True Owner

Because cohabitation alone does not make the survivor part of the decedent’s family under probate law, the decedent can effectively disinherit the survivor. The survivor’s assertion that the decedent would have wanted her to receive part of his estate is likely to fall on deaf ears.

Sometimes, however, the survivor can assert a noninheritance claim against the estate. Perhaps she can prove that the decedent owed her money when he died. Perhaps she can show that she paid for assets titled in his name and that those assets rightfully belong to her.

Probably the most frequently asserted claim of the surviving cohabitant is that, prior to or during their cohabitation, she and the decedent entered into a contract whose terms entitle her to part of his estate. This claim is a variation of the “palimony” claim that one cohabitant occasionally asserts against the other when the couple splits during their lifetimes. While the cohabitation contract or agreement cannot make her an heir, it may entitle her to assert a creditor’s claim against the estate. In most states, the contract does not have to be in writing.

Not that long ago, the surviving cohabitant’s chance of success on the claim was slim, even if she could prove that the couple had entered into the contract and that the decedent had violated its terms. Why? Because courts often concluded that such an agreement was essentially a contract for sexual services out of marriage—an agreement so against public policy that we simply couldn’t enforce it! Today, the couple’s sexual relationship is less likely to spell doom for the survivor’s claim. If the survivor can prove that the couple entered into a contract for other, lawful services, that she performed her end of the bargain, and that the decedent or his estate has not compensated her as the contract requires, then she will often recover from the estate.

Will Contract

Another contract claim available to a surviving cohabitant arises when a decedent breaches a binding promise to will part or all of his estate to her. Again, the survivor must prove the existence of such a contract. Often state statutes require the survivor to show written evidence of the will contract. Under these statutes, the contract can be a separate document apart from the will or it can be made a part of the will. If the will indicates that the contract exists but does not spell out the contract terms explicitly, the claimant can still perhaps assert those terms.
If the statute requires written evidence and the survivor has none, in rare instances the court may allow the survivor to recover if she can demonstrate that her action or performance unequivocally refers to the existence of the contract. Moreover, a court may prevent or “estop” the decedent’s estate from denying the contract if strict adherence to a statutory writing requirement would defraud the survivor or unjustly enrich the decedent’s estate at the surviving cohabitant’s expense. The principal problem in these part performance or estoppel cases, however, is the claimant’s credibility: often she will be the only person who can testify concerning the purported contractual promises. The decedent, who is the other party to the alleged contract, cannot rise from his grave to confirm or deny the survivor’s assertions.

Sometimes the survivor cannot prove the existence of a will contract with the decedent, but her evidence clearly shows that she performed uncompensated services for him and expected to be remunerated. When this scenario exists, the survivor may receive an award in quantum meruit—that is, an award for the value of her services to the decedent. The quantum meruit award is a second-best award for the surviving cohabitant because it is typically far less than the amount she seeks under the purported contract. Although better than nothing, the award is still something of a slap in the survivor’s face, for it treats her as a mere employee or servant of the decedent. On the whole, probate courts are wary of a survivor’s claim concerning an oral will contract. In most such cases, the survivor has a difficult time persuading the court to apply part performance or estoppel principles in her favor. In some instances she will receive a minimal reimbursement for her services to the decedent.
To protect herself, the cohabitant who is a party to a will contract should make sure that she obtains the decedent’s promise of a legacy in writing.

Trial

In Utah, a cohabitation dispute trial begins with the opening statement of the side responsible for bringing the case to trial. The plaintiff is heard first. The defense then has the option of delivering its opening statement or waiting until after the prosecution or plaintiff has presented all of its evidence. Strategy issues relevant to opening statements include statement length, amount of detail, organization, whether to make concessions to the opposing side, and, for the defense, the timing of the statement.

Presentation of evidence occurs through the testimony of witnesses. Again, the prosecution or plaintiff always presents its evidence first. Following the direct examination of each witness, the opposing side has the opportunity to question, or cross-examine, the witness. Strategy issues relevant to the presentation of evidence include questioning style, degree of aggressiveness, especially during cross-examination, and proxemics, or interpersonal distance between the attorney and the witness during questioning.

The last phase of the trial is the closing argument. Like the opening statement, closing arguments are not evidence. However, they differ from the opening statements in that they are argumentative, characterized by attempts to persuade the court to reach a specific verdict. While attorneys are not free to introduce new facts or evidence during closings, they can, within limits, appeal to the emotions as they summarize key components of their case and retell the stories first constructed during openings. Trial strategies relevant to closing arguments focus on organization, content, and use of ingratiation strategies.

Opening Statements

Although attorneys will often begin their persuasive attempts during voir dire, the opening statement represents the first formal opportunity for them to make an uninterrupted presentation of their case.

The defense has the option of making its opening statement immediately following that of the prosecutor or plaintiff’s attorney, or waiting until after the prosecution or plaintiff has presented all of its evidence. Evidence is presented through the testimony of witnesses and demonstrative materials, such as courtroom reenactments, photographs, and videotapes. Although some have argued that a case is won or lost during opening statements, without the evidence to back it up, a good opening becomes little more than an empty promise. At the same time, it might be argued that this is the phase of the trial over which attorneys have the least control. The evidence is what it is. Attorneys must make the most of what is given to them.

During the evidence presentation phase of the trial, attorneys only really control a few things: the medium through and order in which the evidence is presented, the questions they ask, and the manner in which they ask them.

Direct Examination

Most of the evidence presented during a trial is delivered through witness testimony. Direct examination of a witness is conducted by the attorney who calls that witness to testify. Under most circumstances, this exchange will be friendly, characterized by the use of open-ended questions that allow the witness to simply tell his or her story.

Cross-Examination

Cross-examination involves an entirely different questioning strategy. While the direct examination of a witness is characterized by open-ended questions that allow the witness to fully develop and make clear for the jury his or her position, questions delivered during cross-examination tend to be closed-ended, often limiting the witness to a one- or two-word response. Goals of cross-examination occasionally do include clarification of direct testimony and acquisition of additional information that is helpful to one’s case. However, cross-examination is more often conducted with the goal of reducing the credibility of the witness and his or her testimony.

Closing Arguments

The closing argument represents the attorney’s final shot at persuading the jury. Like the opening statement, it is not evidence. However, unlike the opening, during closing arguments, attorneys are allowed some latitude to draw on emotion as they seek two primary goals: to clarify the evidence and to persuade jurors to their side

Probate laws do not permit courts to infer from cohabitation that the couple was an economic partnership, or that the survivor was a member of the decedent’s family. Cohabitation alone does not permit the surviving cohabitant to claim a temporary allowance from the estate immediately following the decedent’s death. Moreover, only rarely will the survivor be able to obtain part of the decedent’s estate through contractual or equitable principles. Thus, while the stigma once attached to nonmarital cohabitation has largely disappeared in modern society, flouting the social convention of marriage still exacts a very high price from many cohabitants.

The message is clear: excluded from the default rules of traditional inheritance law, cohabiting couples should take affirmative steps to protect themselves from disinheritance by each other. If you are entering into a cohabitation or you are in a cohabitation relationship and your partner has passed away, speak to an experienced Orem Utah family lawyer to know your rights.