Is New Jersey’s Palimony Law Constitutional?
Yes. New Jersey’s Palimony law does not violate an individual’s right to due process. As a family law attorney, in 2010 I embraced (and predicted) a dramatic change in New Jersey’s alimony laws. This change instructed lawyers and judges that, absent an agreement in writing that has been reviewed by an attorney for each party, palimony claims are null and void. The following case confirms that this new palimony law in New Jersey is not unconstitutional.
In Lee v. Kim, the Honorable Judge Bottinelli, of the Superior Court of New Jersey, Family Part of Bergen County reviewed a challenge to the amendment to the New Jersey Statute of Frauds, N.J.S.A. § 25:1-5(h), also known as the palimony law, that became effective on January 18, 2010. Palimony is a substitute for alimony in cases where the couple were not legally married but lived together for a long period and then ended their relationship. The key issue is whether there was an agreement that one partner would support the other in return for the second making a home and performing other domestic duties beyond sex. The purpose of the 2010 amendment was to ensure all future palimony agreements were in writing, and executed under the independent guidance of an attorney. Sook Hee Lee, a women who had a relationship with Doctor Jonathan Kim, argued that this amendment violated her constitutional rights as a women. Judge Bottinelli did not agree.
Sook Hee Lee and Dr. Jonathan Kim started dating in June of 2010, six months after the amendment to New Jersey Statute 25:1-5(h), or the palimony law, was enacted. The couple never drafted, or even executed a written palimony agreement. On March 7, 2012, Lee gave birth to their child, S.L., and the couple’s relationship ended soon after in June 2012.
The couple’s litigation began with a Complaint filed in Superior Court on September 2014. Dr. Kim was the only named defendant in the complaint, and Lee sought: child support, even though a previous order had already entered a child support obligation; an accounting of Dr. Kim’s finances; palimony; and monetary relief for intentional infliction of emotional distress. Lee withdrew claim for palimony on October 29, 2014, and later withdrew her allegation of intentional infliction of emotional distress. An order dated January 9, 2015 dismissed her complaint. She then filed an amended complaint in Federal Court without first getting permission from the court-not a good idea. Her amended complaint was dismissed. Her appeal to the Third Circuit Court of Appeals was also dismissed. On February 4, 2016, Ms. Lee filed a third Complaint in Superior Court, in which she listed Dr. Kim and the Attorney General’s office as Defendants.
On March 14, 2016, Dr. Kim filed a Motion to Dismiss in response to Lee’s Complaint. He argued that because the Federal Court dismissed Lee’s constitutional and palimony claims in a previous order, the New Jersey Family Part must honor the order of the Federal Court and also dismiss her claims. Judge Bottinelli explained that in the 1991 case of Watkins v. Resorts Int’l Hotel & Casino, the Supreme Court of New Jersey stated that it is imperative to prevent the circumvention of the judicial system by allowing someone to re-litigate a claim in another court. Watkins held that preclusion requires three elements: (1) the decision in the previous action has to be final, valid, and on the merits; (2) the litigants in the current claim have to be the same or in close privity with those of the past claim; and (3) the later claim must grow out of the same incident or transaction as the previous claim.
Judge Bottinelli found that the June 17, 2015 order of the Federal Court was final, valid, and on the merits, as was the affirmation of the appeal dated September 10, 2015. Moreover, the litigants in this claim were the same as the litigants in the previous claim. Finally, this claim grew out of the same incident at issue in the federal claim, which was the oral promise that Lee claims Dr. Kim made to her during their casual dating relationship. Still, the Court decided it was in the best interest of justice to review her claim because it touched upon a possible violation of the New Jersey Constitution.
Lee argued that New Jersey State. § 25:1-5(h), or the palimony law, violated her right to due process, privacy, and equal protection under the State Constitution. She contended that New Jersey Statute. § 25:1-5(h), took away a substantive right of New Jersey citizens to palimony actions. In her newest complaint she argued that the law denies equal protection and due process to an entire class of citizens made up of unmarried mothers that are mostly financially dependent on their partners and the judicial system to enforce promises of familial support.
In the 1977 case State v. Saunders, the Supreme Court of New Jersey stated the Courts concern with individual privacy rights is to protect personal decisions or the freedom of personal development. In that case, the Court overturned a fornication conviction because the Court found that conduct being regulated by state law was personal behavior, private in nature, and thus the law infringed upon privacy rights. In Lee v. Kim, Lee was not prevented from taking part in an intimate relationship with Dr. Kim. Nor were the couple barred from starting a family if they so wished. When the New Jersey Legislature made N.J.S.A. § 25:1-5(h) into law, they wanted people to memorialize their palimony agreements in writing and to have that writing reviewed by an attorney. As such, Judge Bottinelli rejected Lee’s argument that N.J.S.A. § 25:1-5(h), infringed on her privacy right.
Due Process as enumerated in the New Jersey Constitution, is quite similar to due process under the United States Constitution. The existence of a fundamental constitutional right depends on a two-step inquiry. First, the claimed fundamental right has to be identified clearly, Next, the liberty interest has to be objectively and deeply rooted in the history, traditions, and conscience of the people of the State of New Jersey. In consideration of this two-part inquiry, Judge Bottinelli found that Lee failed to prove her argument that her due process rights were being violated. Entering into a palimony arrangement is not a fundamental right. Moreover, entering into oral palimony arrangements are not deeply rooted in the history, traditions, and conscience of the citizens of New Jersey.
N.J.S.A. § 25:1-5(h) does not restrict a person’s liberty to enter into a relations or a contract with another. Instead, the palimony law merely requires people to make palimony contracts in writing and have those contracts reviewed by an attorney. Similarly, the Court found Lee’s argument that the palimony law results in the victimization of unwed mothers, and deprives them of due process, to be without merit as the right to child support is the child’s right, not the mother’s. This right is not restricted by whether the parents are married or not. Lee was not entitled to support for herself, just because she had a child Dr. Kim.
The Supreme Court of New Jersey has construed the language of Article I, Paragraph 1 of the New Jersey Constitution to embrace the fundamental guarantee of equal protection. In other words, the New Jersey Constitution protects against injustice and the “unequal treatment of those who should be treated alike.” When a litigant challenges a statute for violating their right to equal protection, the Court must engage in a three-tiered analysis. The first factor is the nature of the right being questioned. The second factor is the extent to which the statute interferes with or restricts that right. And, the final factor is consideration for the public need of the restriction enumerated in the statute. Lee contended that the right to enter into palimony agreements was at stake, and N.J.S.A. § 25:1-5(h), restricted that right by requiring all palimony contracts to be in writing and reviewed by an attorney. The public’s need for this restriction is to prevent the potential problem of people getting caught up in length litigation over a contract that may more may not exist. The Family Part of Bergen County found that N.J.S.A. § 25:1-5(h), did not deny Lee of equal protection. Lee’s complaint was dismissed with prejudice.