The End of Palimony?


Palimony is financial support paid from one unmarried cohabitant to another. It was first recognized as a cause of action in New Jersey in 1979, when our  state Supreme Court decided the seminal case of Kozlowski v. Kazlowski, 80 N.J. 378 (1979). In that case, and until recently, the courts have interpreted palimony to include a wide variety of cohabitation agreements to provide future support and division of property as valid and enforceable contracts. The courts have also been willing to find enforceable agreements whether oral or memorialized in writing.

The development of palimony in New Jersey following Kozlowski further broadened the scope of such agreements. In 2002, the court decided In the Matter of the Estate of Roccamonte, 174 N.J. 381 (2002). In that case, the court found that, “marital type relationships between unmarried persons” may reasonably include an enforceable “promise by one to support another.” The court noted that such a promise would sustain a valid claim for palimony, whether express or implied, because “parties entering this type of relationship usually do not record their understanding in specific legalese.”

In 2008, the concept of palimony was again expanded as the Supreme Court decided Devaney v. L’Esperance, 195 N.J. 247 (2008) and the Appellate Division decided the case of Bayne v. Johnson, 403 N.J. Super 125 (App. Div. 2008). In those cases, the courts respectively found that a palimony agreement could be express or implied and that the type of relationship needed to establish a palimony claim need not be for a specific duration of time, or even be of a “live-in” nature. In Bayne, the appellate court determined that whether a particular relationship was of a sufficiently “marital type” to support a palimony claim was defined by the actual characteristics of the particular relationship. To that end, the court went on to list certain broad traits of “marital type”  relationships, such as: 1.) a commitment to forego other opportunities; 2.) mutual companionship; and 3.) an effort to fulfill each other’s financial, emotional, physical and social needs “as best they are able.” Under this rubric, physical cohabitation itself was determined to be less a necessity and more a general consideration in the overall analysis of the alleged “marital type” relationship.

In 2010, as a transparent and intentional response to above prevailing case law, the New Jersey legislature amended the Statute of Frauds to include agreements for support between unmarried adults. N.J.S.A. 25:1-5(h). Under the amended statute, agreements for support between unmarried adults, i.e. palimony agreements, must now be made in writing and done so with the advice of independent counsel.

In that the legislature’s amendment requires certain foreknowledge about the relationship, it is clearly at odds with the nature of the relationships that form the underlying source of palimony claims. As Roccamonte wisely observed, parties do not generally enter into cohabitating situations having first memorialized in writing the scope of their arrangement. More often than not, these living and support arrangements grow organically. And, over time, and especially where children have been introduced into the dynamic, one party has likely sacrificed their career and become dependent on the other party for financial support of the home and family.

The question, however, is whether this clear effort by the legislature to undermine palimony absent a written agreement serves as its death knell. The amendment has certainly excluded those who have entered into such cohabitating living arrangements and who have refused or otherwise failed to set down in writing the terms of their arrangement. But as other legal commentators have noted, it is a well established principle that the Statue of Frauds may be inapplicable to subject types of agreements where there has been performance of the alleged agreement by one of the parties. Thus, advocates of palimony have argued that the Statute of Frauds may be no bar to relief in certain circumstances where parties have orally entered into palimony agreement and began living according to the terms of that agreement. It is yet to be seen whether this legal argument holds any weight before the courts as recent published decisions have not addressed this unique position. As we await a published case on this point, unmarried cohabitants would be wise to discuss their arrangement and commit it to writing, no matter how difficult a conversation it might be. For the dependent partner, it could mean the difference between taking a fair share of what you helped build and being left out in the cold.


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