Are Palimony Claims Still Valid Under New Jersey Divorce Law?
Over the course of my career as a New Jersey divorce attorney, I noticed a slow and steady increase in folks coming to consult with me regarding potential palimony claims. Over time, I started to become concerned that palimony claims would bog down the Family Part of the Superior Court of New Jersey. My reason for worry was premised on my own observations that more and more Americans are residing together with no intention of ever getting married. In turn, as a New Jersey family lawyer, I knew that this significant shift in our nation’s cultural attitude towards marriage would have to be addressed. Fortunately, I was not alone. Let’s explore.
Simply put, palimony is similar to alimony except the couple was never married. For years palimony an individual to support their significant other even if they broke up premised claims on verbal or oral promises. These cases were always extremely fact sensitive and, in my experience as a New Jersey divorce lawyer, credibility of each party was essential. Moreover, palimony claims were beginning to dominate the already extremely busy New Jersey Family Court’s.
As I mentioned earlier, fortunately I was not the only one who saw trouble ahead. In January 2010, New Jersey amended its statute of frauds to include paragraph (h). The amendment meant that no action could be brought upon the following promise: “a promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination.” Paragraph (h) also included the fact that “no such written promise is binding unless it was made with the independent advice of counsel for both parties.” The only way to bring an action upon a promise made in such a manner was if the parties had signed a written agreement legally authorizing support payments only if both parties’ lawyers had advised them before executing the agreement.
The statute of frauds requires certain types of contracts to be in writing. In New Jersey, the statute of frauds, among other things, typically requires a signed writing in cases where prenups are signed, palimony agreements are entered into, and several other instances where agreements related to the consideration of marriage are entered into. In New Jersey, the statute of frauds is covered in Title 25, frauds and fraudulent conveyances. However, for purposes of this piece, Title 25:1-5, promises or agreements not binding unless in writing, is the most critical provision of the statute.
The amendment to the statute of frauds caused confusion in the beginning. People wondered if their complaints were permissible or would be barred if they had been filed after the effective date (January 18, 2010). In the case of Maeker v. Ross, 430 N.J. Super. 79 (App. Div. 2013), the issue before the court was whether a palimony claim, where the promise for support was made prior to the amendment to the statute of frauds, was barred if the complaint was filed after January 18th, the effective date.
Maeker and Ross began dating in 1998. Their relationship started to become serious and they moved in together, yet was not married. They first rented a house together in Bedminster, New Jersey and then leased together a different home with the option to buy it in the future. Yet, in 2011 Maeker and Ross’s relationship was terminated upon Ross moving out of their home. Maeker alleged that while she and Ross were dating, she did not work outside of the household and that Ross had fully supported her living expenses. She claimed that Ross had promised to always support her no matter what.
In 2010, Maeker claimed that Ross made her his attorney-in-fact, which basically meant that she was entitled to manage and conduct his affairs. In addition to the Power of Attorney agreement, Maeker claimed that Ross also appointed her to be his Executrix and Trustee of his will. Pursuant to the will, Maeker stated that Ross devised the entirety of his residuary estate to her.
On July 8, 2011, Maeker filed a complaint seeking relief based on palimony, fraud and unjust enrichment. She filed an amended complaint on November 10th. Ross then filed a motion to dismiss Maeker’s complaint. He argued that the promise, if there even was one, was never memorialized in writing or had the benefit of independent counsel. Therefore, Maeker’s claim was not enforceable.
The motion judge held that even though Maeker’s complaint was filed after the amendment to the statute of frauds, the contractual relationship existed before the effective date of the amendment. Therefore, he denied Ross’s motion to dismiss and granted Maeker with relief. However, on appeal the appellate division found the words of paragraph (h) of the statute of frauds to be “clear and unambiguous.” The court stated that Maeker’s cause of action accrued at the time Ross allegedly breached the support agreement, not at the time the promise of endless support was made.
The Court held that the amendment to the statute of frauds makes “clear and unambiguous” that in order for the palimony agreement to be enforceable; it must be in writing, with both parties having the benefit of seeking out their own attorneys, regardless of when the agreement to provide endless support may have been entered. Therefore, the palimony claim was barred. It did not matter that the promise for endless support was made prior to the 2010 amendment to the statute of frauds. What was important was that in this case, the palimony claim was barred because the complaint was filed after the effective date.
While the Appellate Division ruled against Maeker in this instance, it might not be the law of the land for much longer. On September 4, 2014, the Supreme Court of New Jersey granted certification. Please stay tuned as my office continues to monitor this red-hot area of New Jersey family law. Thank you.