On September 25, 2014 the New Jersey Supreme Court clarified the law on the issue of palimony in the state of New Jersey when they rendered their decision in the matter of Maeker v. Ross. While many practitioners will be familiar with the concept of alimony, the topic of palimony is less widely known, less widely understood, and until this decision was rendered subject to considerable confusion. The issue of palimony was first decided in Kozlowski v. Kozlowski, AD N.J. 378, 384-85 (1979). Kozlowski was the first case in the state of New Jersey that recognized the enforceability of palimony agreements against the person who promised to provide for the future support of a partner with whom he or she shared a marital type relationship. That is a critical distinction in that palimony applies to unmarried couples. As such the palimony law as amended in 2010 and the Maeker v. Ross decision impacts heterosexual and same sex couples throughout the state. While the interpersonal relationship can be long-term and marriage-like, it was not common for parties to enter into a formal written agreement detailing their respective support promises, obligations, and expectations. The court would allow for the enforcement of oral promises assuming that the terms and conditions could be verified and substantiated. When married, the promises of support and the right to support are operative without a written agreement regardless of the date of the marriage.
All of this changed with the amendment to the statute of frauds which was enacted on January 18, 2010. N.J.S.A. 25:1-5(h) provided that “no action shall be brought to enforce a palimony agreement unless the agreement is in writing and unless the parties made the agreement with the independent advice of counsel.” Clearly this amendment to the statute of frauds changed the landscape on palimony and served to disadvantage the financially dependent party who may have very reasonably expected to be provided with financial support and assistance by the other party. Oral agreements may now be enforced.
Not only is it, in this writer’s opinion, a draconian requirement, the issue of palimony was further complicated by the fact that the amendment to the statute of frauds did not clearly indicate whether or not application of these new requirements that a written agreement exist and that the parties consult with consul were to be retroactive; i.e., whether or not the requirement that a writing be in place to confirm the terms of the agreement and that the parties meet with counsel would apply to relationships and promises that predated the amendment. Both litigants and counsel were working in a black hole.
Many family law practitioners saw the inherent inequity that would result by imposing this new obligation on preexisting relationships. It is simply unfair to hold parties to an obligation that did not exist at the time they entered their relationship. Furthermore given the clear language of the amendment that a writing be in place it is illogical to assume that supporting parting would now agree to reduce his or her commitments to the other party in writing knowing that the absence of such a writing would excuse them from any obligation.
The case of Maeker v. Ross clarified this issue. At the trial court level the plaintiff was allowed to present a claim for palimony even though she acknowledged that no writing existed which confirmed the terms of the agreement. The defendant appealed and that appeal was granted. The appellate court found that the statute should be retroactively imposed upon not only these two litigations but any and all similarly situated parties whose relationships and promises existed prior to 2010.
It is in this context that the Supreme Court received the case and in a decision welcomed by virtually all family law practitioners the court erred on the side of fairness and has now clarified the law that relationships and promises post-2010 are held to the requirements as set forth in the amendment to the statute of frauds. Those relationships and related promises that predate the statute can be determined and adjudicated even in the absence of a writing.
Practioners can now tell litigants whether or not they may raise a palimony claim. As the requisite burden of proof is greatly impacted by the relevant dates, the viability of such claims requires an individualized analysis.
