By Marshal S. Willick
I. INTRODUCTION
Through a process that has come to be known as “tacking,” property accrued during a period of premarital cohabitation may be divided between the cohabiting parties after they marry and later divorce. See Carr-Bricken v. First Interstate Bank, 105 Nev. 570, 779 P.2d 967 (1989).
Ditto for cohabiting parties when the timeline is reversed. Here, parties marry, divorce, and then live together in a meretricious relationship; the property accrued by either of them during the cohabitation period may be equally divided when the relationship ends. See Hay v. Hay, 100 Nev. 196, 199, 678 P.2d 672, 674 (1984).
The same applies when two parties think that they are married, but they are not by reason of a legal impediment making any attempted marriage between them void. See Williams v. Williams, 120 Nev. 559, 97 P.3d 1124 (2004).
And the same result occurs when there is no purported marriage at all. Nevada has adopted the California Marvin line of authority, holding that unmarried parties may have either an express or implied agreement to accrue property together, which becomes community property by analogy. See Western States Constr. v. Michoff, 108 Nev. 931, 840 P.2d 1220 (1992).
All of these “committed intimate partner cohabitant” cases (previously known as “meretricious relationship” cases) involve parties engaged in a romantic or homemaker-companion relationship that resembles the marital relationship but without a formal marriage ceremony. Such parties obtain potential rights, both to half the property accrued during such a relationship and to make a claim for support (sometimes called “palimony”), when the relationship terminates. For background, see Marshal Willick, The Evolving Concept of Marriage and Coming Convergence of Marital and Non-Marital Property and Support Law 19 Nev. Law. 6, (May 2011). The number of such cases have mushroomed and may soon constitute the majority of family disputes.
These holdings and precedents can be applied in a large number of factual contexts, having a big impact on: property distributions, going to subjects as diverse as appreciation of real estate, contributions to and increases in value of retirement benefits, and Pereira/Van Camp analyses of a domestic partner’s interest in a separately owned business.
Justice Springer gave an excellent explanation of why all disputes between such committed intimate partners belong in family court. In Gilman v. Gilman, 114 Nev. 416, 956 P.2d 761 (1998), he noted that the words “cohabitation” and “cohabiting” are words of particular legal significance that carry more meaning than merely living under the same roof, and that it is a “status-creating condition.”
Landreth v. Malik, 127 Nev. 175, 251 P.3d 163 (2011), was a dispute over house ownership between childless cohabitants, filed in family court. Ultimately, the Supreme Court of Nevada found that such cases could properly be litigated there, but because such disputes are not specifically enumerated in the list of case types within the jurisdiction of family courts, in NRS 3.223, assignment of such cases was not made mandatory.
II. THE PROBLEM
Since family court was created, in 1992, the bulk of cohabitant cases have been resolved there, as they should be, since “a property-accrual agreement between cohabitants is ‘not the kind of arm’s length bargain envisioned by traditional contract principles, but an intimate arrangement of a fundamentally different kind.’” Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979).
Some law firms, however, have noticed these lines of authority and created a cottage industry of representing potential obligors in such cases, seeking to extract a piece of the issues (typically ownership of one asset) and file that claim in the civil division, often demanding a jury trial. The tactic is to financially exhaust the weaker party and stifle, avoid, or dismiss all of the other claims properly part of an intimate partner cohabitant case, and, if possible, prevent the family court case from being heard at all.
At minimum, it creates an unnecessary “race to the courthouse” and duplicative parallel litigation, since civil division judges have been resistant to transferring the limited cases filed there to be considered as part of the overall resolution of property and support rights in family court.
While NRS 3.025(3)(a) requires reassignment to family court if the parties are or were parties to a family court case, the statute is applied inconsistently. Mandatory reassignment of these cases should not require that at all, because the issues in every intimate cohabitant case are identical regardless of whether there was such a prior family court case. And only family court judges can or should consider support claims.
Unfortunately, the Supreme Court of Nevada declined to exercise its role as administrator of the court system by setting out case assignment directives between the family and civil divisions, leaving the question of case assignment in chaos and creating opportunities for people to divest long-term cohabitants of their rights by clever filing in the civil division. So the task falls to the Nevada legislature.
III. THE SOLUTION
A simple amendment to NRS 3.223, to add claims between intimate cohabitants to the list of case types within the family court’s explicit jurisdiction, would solve the problem and is long overdue.
IV. CONCLUSIONS
As a matter of equal protection and otherwise, case assignment between divisions should correspond with the nature of the dispute between the parties, not whether the parties were once married or never married, or did or did not have a prior case in family court.
Intimate partner cohabitant cases belong in family court, in part because every Hay/Michoff case creates the possibility of a support award, and that is the only forum with experience and training in determining the right to support—a subject within the exclusive jurisdiction of the family court. See NRS 3.223(1)(a).
It is no real argument to say that “contract disputes can be resolved in the civil division.” In Nevada, family court, and only family court, is suited to address issues more akin to a community-property-and-alimony analysis than a contract dispute between arm’s-length strangers. What is needed now is a knowledgeable legislator with the will to initiate that positive reform.
About the author
Marshal S. Willick is the principal of the Willick Law Group, an A/V-rated Las Vegas family law firm, and QDROMasters, its pension order drafting division. He can be reached at 3591 East Bonanza Rd., Ste. 200, Las Vegas, NV 89110-2198. Phone: (702) 438-4100; fax: (702) 438-5311; e-mail: Marshal@WillickLawGroup.com.
About the article
This article was originally published in the Communiqué (Mar. 2025), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2025/communique-mar-2025/. The printed magazine was mailed to CCBA members the week of March 4, 2025.
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