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Case Law Review for the Week of September 21, 2014

On Behalf of | Sep 29, 2014 | Family Law |

Maeker v. Ross, Supreme Court of New Jersey, September 25, 2014: This highly anticipated decision from the Supreme Court of New Jersey considered whether the amendment to the Statute of Frauds which required that palimony agreements be reduced to writing to be enforceable (i.e., oral palimony agreements are now unenforceable) as set forth in N.J.S.A. 25:1-5(h) was to be retroactively applied or was only to be prospectively applied. The Supreme Court of New Jersey determined that the revised statute would only be applied prospectively, meaning that oral palimony agreements which were entered into prior to January 18, 2010, the date the revised statute went into effect, can be enforced even if they have not thereafter been reduced to a writing.

A palimony agreement is a promise to provide future support to a partner with whom one shares a marital-type relationship but with whom one never marries. The Supreme Court of New Jersey first recognized the enforceability of a palimony agreement in Kozlowski v. Kozlowski, 80 N.J. 378 (1979), wherein they found that such agreements can be enforced even if they are oral, recognizing that it is uncommon to reduce such agreements to writing due to the nature of the relationship and the understanding. In Kozlowski, the Court observed that many couples choose to cohabit and live in marital-type relationships without marrying and recognized that partners in those relationships are entitled to enter into lawful agreements with one another. The Court held that if one party induces the other to enter or remain in the relationship by a promise of support, made either orally or in writing, the agreement — commonly referred to as a palimony agreement — will be enforceable in court. See also Devaney v. L’Esperance, 195 N.J. 247, 258 (2008) (holding that, even in absence of cohabitation, “promise to support, expressor implied, coupled with a marital-type relationship” is sufficient for palimony agreement).

The Amendment to the Statute of Frauds made two significant alterations to the law. It requires that a palimony agreement be in writing and signed and that the parties have “the independent advice of counsel” before making the agreement. N.J.S.A. 25:1-5(h). In considering the effect of this amendment to palimony agreements that were entered into prior to the passage of the revised statute, the Court determined that the Legislature, in passing N.J.S.A. 25:1-5(h), did not intend to retroactively void the indeterminate number of oral palimony agreements that predated its enactment. Couples entering into oral palimony agreements in reliance on Kozlowski did not have to anticipate that the Legislature might, in the indefinite future, impose writing and counsel requirements that would invalidate their agreements.

Based upon the holding in this case, palimony agreements that many had presumed would be considered unenforceable after the amendment to the statute will now be considered and enforced by courts in New Jersey. As such, if you believe that you have a claim for palimony based upon an oral agreement that was entered into prior to January 18, 2010, you should immediately contact a family law attorney to discuss your rights and obligations.

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