Breaking Up Is Hard To Do — Especially Among the Unmarried. Professor’s Work May Help.

Naomi Cahn Recently Wrapped Work on Model Legislation
Naomi Cahn

Professor Naomi Cahn is an expert in family law and trusts and estates, among other topics.

November 8, 2021

Most Americans say that unmarried adults living together is a socially acceptable trend, even if marriage is not on the horizon. Among adults ages 18 to 44, more people in that age group have participated in nonmarital cohabitation than have been married, according to the Pew Research Center.

But despite the popularity, just like in marriage, some of those relationships will end. How to settle up when couples split up is often unclear, and it varies among states.   

Professor Naomi Cahn of the University of Virginia School of Law, an expert in family law and trusts and estates, recently served on a multiyear effort to help provide greater uniformity to the various laws and judicial decisions that affect the economic side of cohabitants ending their relationships.

As a reporter for the Uniform Law Commission, Cahn worked with a ULC committee and observers from a variety of groups and perspectives to complete the model Uniform Cohabitants’ Economic Remedies Act this summer. She noted that she worked closely with Laura Morgan ’95, an American Bar Association section adviser to the committee.

“The act provides predictability for cohabitants,” Cahn said. “It allows cohabitants to assert contractual and equitable claims like any other litigants.”

The act is more than just about who gets what. The proposal recognizes that cohabitants can enter into agreements with one another, and that contractual and equitable claims can be based, in the words of the act, on “an interest, promise, or obligation arising from contributions to the relationship.”

Contributions can include domestic services, such as one partner providing child care. Potential claims of what constitutes economic contribution to a relationship are not limited under the act’s language, however. What constitutes a cohabitating relationship is also broadly defined.

“The act does not require a minimum period for living together,” Cahn noted. “But the length of time over which the cohabiting relationship occurs is likely to affect the claims brought.”

Nor, she said, does the relationship have to be sexual in nature to count under the act. Likewise, a relationship that was sexual in nature does not forbid claims.

Living together doesn’t even require steady cohabitation. Relationships in which one person may be away from a residence due to work, such as military deployment, or incarceration could also be included under the act.

The act, however, does have some restrictions. Cohabitants cannot be married to one another, although either or both people in the cohabiting relationship could, in theory, be married to someone else and still make a claim.

The act also considers dissolution of a relationship due to the death of a partner, permitting either the survivor or the estate representative to assert property and monetary claims.

Jurisdictions currently vary on this topic as well, the professor said.

Cahn said her contributions to the model legislation involved serving on a study committee, conducting research and receiving input from commissioners and observers, and then working on the drafting based on what the Drafting Committee decided should go into the act. In total, the proposal was about five years in the making.

The Uniform Law Commission — also known as the National Conference of Commissioners on Uniform State Laws — is a nonpartisan service to states, providing well-drafted legislation “that brings clarity and stability to critical areas of state statutory law.”

H. Lane Kneedler ’69 serves as head of the Virginia delegation.

The ULC has now posted the proposal on its website and will begin making presentations to states, which may adopt the legislation in whole or in part.

Cahn said the overarching point is that the act will clear barriers for cohabitants so they can assert claims against one another, just like anyone else who goes to court.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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