Will Palimony Go The Way of The Siberian Tiger?

By

Charles F. Vuotto, Jr., Esq.

There may be fewer than 200 Siberian Tigers in the wild.  If the proposed amendment to the Statute of Frauds is enacted, claims for palimony will be as scarce as these majestic beasts. 

Amendment to Statute of Frauds

On March 16, 2009, the New Jersey Senate passed S2091, which would amend N.J.S.A. 25:1-5 to prohibit the enforcement of “palimony” agreements unless such agreement is made in writing.  The NJSBA has opposed S2091 since the first time the proposed legislation was drafted in 2004.  Instead of the language contained in S2091, the Executive Committee of the Family Law Section has drafted a comprehensive palimony statute.  The proposed New Jersey Palimony Statute incorporates many of the principles which had established through New Jersey decisional law, with revisions as deemed appropriate by the Executive Committee (but only after much debate).

To a large degree, the Senate bill was a reaction to the decision in Devaney v. L’Esperance[1] wherein the New Jersey Supreme Court dealt with the question of whether cohabitation was a necessary element in every palimony claim.  The Court ultimately held that cohabitation was not an element, but rather a factor to be considered.  The Court stated that a marital-type relationship is essential to any palimony claim; however, cohabitation is not essential to a determination of a marital-type relationship because today there are married couples who may be separated by employment, military service, or educational opportunities. 

Why the Amendment to Statute of Frauds is Wrong

The proposed statute disproportionately prejudices the economically inferior partner  in a long-term relationship akin to marriage, who has become dependent on the economically superior partner. 

Proposed Palimony Statute

Because of the potential for frivolous claims in relationships not memorialized by the ceremony of marriage, there is a logical basis to require that a promise to support be in writing in order to prove that such a promise was actually made and what its terms were.  However, as stated in the Section’s initial position opposing the amendment to the Statute of Frauds, such a requirement is fraught with potential harm and possible inequity to a dependent person who has entered into a committed relationship to his or her detriment.  Moreover, when a promise for support has been made, equity and fairness require that such a promise be enforceable irrespective of whether the promise was made in writing.  To impose a requirement that such promises be made in writing places an undue burden upon the dependent party who has relied to his or her detriment on the promise and exposes that person to the possibility of becoming a public charge.  However, greater safeguards are required beyond that which the law currently provides.  As such, the Family Law Section’s proposed Palimony Statute does not require the agreement to be in writing.  However, the proposed Palimony Statute provides for a rebuttable presumption that there can be no palimony cause of action without cohabitation.  The proposed Palimony Statute will incorporate the existing law with certain modifications necessary to protect all parties engaged in such relationships.

PROPOSED NEW JERSEY PALIMONY STATUTE

(a)                     Definition:  Palimony is defined as a financial award made pursuant to the provisions of this Act.

(b)                    The Legislature makes the following declarations regarding palimony claims: 

(1)   Enforcement of specific agreements, whether express or implied, between unmarried or non-civil-union partners in a committed relationship, regardless of whether the couples are same-sex couples or heterosexual couples, serves the public policy of this State.

(2)   The formation of a marital-type or civil-union-type relationship between unmarried or non-civil-union partners may, legitimately and enforceably, rest upon a promise by one to support the other.

(3)   Agreements between unmarried or non-civil union partners are intensely personal rather than transactional in the customary business sense.  As such, special considerations must be taken into account to determine whether such a contract has been entered into and what its terms are.   

(4)   Valid agreements between unmarried or non-civil union partners in a marital-type or civil-union-type relationship, which do not rest exclusively on meretricious consideration, should be enforced in the courts of this State.

(5)   It is in the interest of this State to enforce a promise for financial support made between partners in a committed, marital-type or civil-union-type relationship.

(6)   In the absence of recognition of palimony claims, the dependent partner in these committed relationships may be left without a means of adequate support.

(7)   It serves the public’s interest that all evidence required by this Act be proven by a preponderance of the evidence.

(c)                     A valid palimony agreement must include the following elements, which must be proven by a preponderance of the evidence:

(1)   A promise to support.  Which may be oral, express or implied; 

(2)   The formation of a Marital-type or Civil-Union-type Relationship.  Which shall be defined as the undertaking of a way of life in which two people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, fulfilling each other’s needs, financial, emotional, physical, and social, as best as they are able;

(3)   Cohabitation.  It shall be a rebuttable presumption that there can be no palimony cause of action without cohabitation; and 

(4)   Valid consideration.  Which shall be real and substantial and not include meretricious consideration.

(d)                    In determining whether a valid agreement exists, the court shall consider the following factors, which must be proven by a preponderance of the evidence, in determining whether (c)(1) through (c)(4) have been satisfied:

(1)   Whether the parties’ relationship was serious and lasting;

(2)   Whether the parties established a common residence;

(3)   Whether the surrounding circumstances are indicative of a promise;

(4)   Whether the parties held themselves out as being in a committed relationship;

(5)   Whether there was a recognition of the relationship by the community; 

(6)   Whether there was intimate or romantic involvement;

(7)   The duration of the relationship;

(8)   Whether the parties shared joint assets or liabilities;

(9)   Whether there were joint contributions to household expenses;

(10)         Whether the promisee made non-monetary contributions to the household;

(11)         Whether the promisee detrimentally relied upon the promise to support;

(12)         Whether the parties assumed parental responsibilities together;

(13)         Whether the promisee ended the relationship and if so, under what circumstances; and

(14)         Any other relevant evidence.

(e)                     Upon a finding of a valid palimony agreement, the court may grant the following relief:

(1)   Damages (including but not limited to a lump sum payment or periodic payments). 

(2)   Specific performance based upon the parties’ agreement. 

(3)   A court may not award spousal support or order equitable distribution of property between individuals who are not married to one another except as expressly permitted in accordance with this Act.  However, nothing in this Act shall preclude a palimony claimant from also asserting claims based in law or equity as otherwise afforded in the law.  Equitable claims can include, but not be limited to, implied contract, quantum meruit, unjust enrichment, resulting trust, constructive trust, and joint venture.

(4)   The financial circumstances of the obligor shall be considered in contemplating the award of damages. 

(5)   It is contemplated that the award shall not be taxable to the obligee or deductible by the obligor, but if a contrary result occurs due to tax law, that result must be taken into account in calculating the award.

(f)                       Causes of action seeking palimony shall be heard by the Family Part and shall be subject to an award of counsel fees.

(g)                     Any causes of action seeking relief under this statute on or after the effective date of the legislation shall not be valid unless it meets the requirements set forth above in subsection (c).

ANNOTATIONS

Specific Performance

If there is an express promise to provide one partner with a home, specific performance is available in a claim for palimony.  Crowe v. De Gioia, 203 N.J. Super. 22 (App. Div. 1985).

NJSBA Lobbying Efforts

The New Jersey State Bar Association Board of Trustees, at its October 2009 meeting, voted overwhelmingly to endorse the Section’s efforts to develop and present an alternative to Senate Bill 2091.  During the course of the discussion, the Board expressed its deep appreciation to the Section for not only its quick turn around, but the quality of the work presented.

The NJSBA is now working with its lobbying firm, Public Strategies Impact, to assist us in advancing the bill

Those who have been moved by this proposed Bill and its potential impact should consider what action is necessary to assure that justice is done.