Palimony and Claims of Unmarried Cohabitants

The recent shift in legislation and case law in New Jersey has left unmarried people who are in committed relationships in an extremely precarious position. Although New Jersey has not recognized “common law” marriages since 1939, and relief predicated upon a “promise to marry,” has been barred since 1935 by the Heart Balm Act, N.J.S.A. 2A23-1 et seq. , until recently a palimony claim (i.e. a claim for support between unmarried people) could be brought by unmarried individuals who were in “marital-type relationships,” where there had been a “promise for support,” without requiring the existence of any written contract or agreement between the parties. Kozlowski v. Kozlowski, 80 N.J. 378 (1979). These promises could be “express,” (meaning a specific oral promise was made) or “implied,” (based upon a consideration of the circumstances). In fact, even unmarried individuals who didn’t live together could assert a claim for palimony. Devaney v. Esperance, 195 N.J. 247 (2008).

However, on January 18, 2010 the New Jersey State Legislature amended the Statute of Frauds (which requires certain types of contracts to be in writing in order to be enforceable) to prohibit actions for palimony or lifetime support unless the promise for such support is in writing, signed by the person to be charged with such support and made with the independent advice of counsel for both parties. (P.L.2009,c.311 codified at N.J.S.A. 25:1-5(h)). This means that unless a party has a written agreement with their romantic partner and each were both represented by attorneys in entering into the agreement, they will be barred from making a palimony claim. The amendment to the statute indicated that it shall “take effect immediately,” however no express statement of whether it should be applied retroactively to pending cases and future cases was indicated in the legislation itself.

In April 2011, the New Jersey Appellate Court decided the case of Botis v. Estate of Kudrick, 421 N.J. Super 107 (App. Div. 2011), in which our office argued on behalf of the Estate of Kudrick. In this case, the Court found that amendment to the Statute of Frauds should not be applied retroactively in a case which was filed against the promisor’s Estate prior to the effective date of the amendment on an alleged agreement between the parties when the complaint was filed. The Court held that this writing requirement (ie. the amendment to the statute) applies prospectively only. However, the Botis case left open the question of whether or not a case in which the operative facts arose (i.e. a promise of support was made in a marital type relationship) prior to the amendment to the statute, but where a complaint had not been filed until after the amendment to the statute would also be barred from asserting a claim for palimony.

Two recent cases have expanded upon the Court’s ruling in Botis. In Cavalli v. Arena, 425 N.J. Super 595 (Ch. Div. 2012), a New Jersey Court indicated that the amendment to the Statute of Frauds barred a palimony claim in a case in which the parties’ relationship and alleged promise took place prior to the amendment, but in which a complaint was not filed until after the amendment. This same holding was followed by the Appellate Court in Maeker v. Ross, 430 N.J. Super 79 (App. Div. 2013), in which the Appellate Court found that the amendment to the Statute of Frauds should be strictly retroactively applied to present an absolute bar to a palimony claim where there was no such writing, but where the purported “agreement” between the parties was entered prior to the amendment. The Court indicated that the filing party’s “cause of action” arose at the time the promisor breached their “agreement,” and that she had 18 months from the passage of the amendment in January 2010 to enter into a written agreement with the promisor.

The Court in Maeker, reviewed other possible claims and equitable defenses that could be available to would-be palimony claimants shut-out by the change in the Statute of Frauds, including “partial performance,” “unjust enrichment,” “quantum meruit,” and “equitable estoppel.” However, the Court denied relief on these claims because the basis for them were the same as those the claimant relied upon in her underlying palimony claim. Maeker, 430 N.J. Super at 97.

The amendment to the Statute of Frauds and the trajectory of the case law in New Jersey protects an alleged promisor from being subject to unwarranted claims for palimony unless a written agreement is entered into between the parties and has created a significant burden for the person who is being supported or who relies upon a promise of future support to make a palimony claim because of either ignorance of the law or difficulty in extracting such a written agreement from their romantic partner. Further, given the statutory amendment and the recent New Jersey Court decisions, it is questionable whether any other equitable claims will be available to potential palimony claimants that are shut-out by the statutory amendment.

On September 10, 2013, the New Jersey Supreme Court granted certification for an appeal of the Appellate Court’s holding in Maeker v Ross. This will be a chance for the New Jersey Supreme Court to potentially clarify what has become a very difficult playing-field for unmarried people involved in committed, marital-type relationships. Until the Supreme Court speaks, however, these individuals are left in a position where unless a party has it in writing, they may be foreclosed from getting any support from a promisor, even in cases involving extreme long-term and even life-time commitments. It is crucial for individuals in committed, marital-type relationships, even ones in which they do not necessarily live together with the other person, to consult with an attorney and to make sure they are aware of how these laws effect them. We recommend that you contact our experienced team of Family Law attorneys to schedule a PHONE CONSULTATION to discuss your case.


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