Richard S. Diamond Family Law Blog on Lawyers.com

30 years ago, the New Jersey Supreme Court held that a promise (oral or in writing) made by unmarried cohabitants in a marital-style relationship can be enforced, under the concept of "Palimony". Kozlowski v. Kozlowski, 80 N.J. 378 (1979).  This concept has been upheld and expanded upon by subsequent decisions. See e.g. Devaney v. L'Esperance, 195 N.J. 247 (2008), In re Estate of Roccamonte, 174 N.J. 381 (2002).

In its simplest sense, the concept of palimony  means "detrimental reliance" upon the promises of the other. In a marital-type relationship, it is where one party changes his / her financial setting because of the promises of support, asset accumulation, etc by the other party.  It is based on the law of contracts, where an oral promise can be enforced if a party relies and acts on it to their detriment.

Recently the New Jersey Supreme court has further defined the circumstances under which a palimony claim can be filed.  In re Estate of Roccamante, the court held that entering into a marital-type relationship and acting accordingly, was sufficient consideration to enforce a promise for support.  In re Estate of Roccamonte, 174 N.J. 381, 393 (2002).  At the same time, the court clarified that cohabitation i.e. living together in a family setting was an essential requirement for a palimony claim.

However, in last year's New Jersey Supreme Court decision in Devaney v. L'Esperance the court pulled back slightly from its prior position and held that cohabitation is not an indispensable element of a cause of action for palimony, so long as there is a marital-type relationship.

For reasons unknown to this writer, this pull back on the living together requirement has triggered the New Jersey legislature to jump into the fray and consider a bill under which parties will be required to enter formal written palimony agreements, to be enforceable in New Jersey.  A bill (S2091) going through the New Jersey legislature, that is likely to become law, will modify N.J.S.A. 25:1-5 and require "[a] promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination" to be in writing to be in enforceable.  The stated purpose of this bill is  to overturn the New Jersey Supreme Court's palimony decisions in Devaney and In re Estate of Roccamonte.

This development by our legislature is troubling because it is eroding the intent set forth thirty years ago by the Court's decision in Kozlowski. In Kozlowski, our Supreme court held that if you made representations that another relied upon to his/her financial detriment in a marital style setting regardless of whether that representation was in writing, a court of equity could intervene to prevent an unjust harm / enrichment. Instead, this bill will require people to first register their intent to provide support by signing an agreement, just like in a civil union.

The result is that it will deprive the courts of any ability to decide what is fair and reasonable or make any award in the absence of a written agreement, which is often the case in palimony situations. Similarly, such legislation will require unmarried cohabitants to continually update their "intent" in writing as the length of their relationship expands. If they fail to do so, the intent expressed by them in the first year of living together can bind them 10 - 15 years later, working a potential inequitable result on one and a potential windfall to the other.

As an example, consider a real palimony case previously considered by our court system. in that matter, a woman  lived in Chicago and owned her own business dated a wealthy man from NJ. During the course of their dating relationship, he convinces her to close down her business in Chicago and move in with him in NJ based on an oral promise to care of her. for the next 8 years, they live a wonderful and happy life together, then during the course of a routine medical exam, she is diagnosed with cancer. On her drive home from the doctor, she finds that the gates to their home are locked and her clothing packed and waiting for her outside.  According to the court papers filed in that matter, the man threw her out because he did not want to have to be stuck caring for a woman who was going to die.  Under NJ case law, she had a valid cause of action against him for palimony despite the fact that they never married nor registered their relationship nor signed any type of written agreement. Under the proposed law, would she still have a palimony claim ?

The New Jersey court system is not overwhelmed by palimony claims. They are expensive to bring and judges are well qualified to consider the unique facts and circumstances of each case. The proposed bill will take away the rights of individuals who would otherwise be entitled to claim support, and may signal the end of palimony claims in New Jersey.

This post was previously published on my New Jersey Divorce Law Blog. For a consultation on any New Jersey family law matter please contact me at 973 379 9292.  Further information on the law firm of Diamond & Diamond, P.A. can be found on our web-site.