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Not So Fast: The Obituary of Palimony’s Demise May Be Premature

Only several months ago I wrote a blog discussing the then state-of-the-law in New Jersey in regards to palimony and the ability of unmarried cohabitants to enforce unwritten promises of support.  I noted that the recent Appellate Division case of Maeker v. Ross, 430 N.J. Super 79 (App. Div. 2013), had strictly interpreted the January, 2010 Amendment to the Statute of Frauds (N.J.S.A. 25:1-5(h)) to bar a palimony claim in the absence of the required writing, and applying same to pre-existing non-marital relationships.  The court concluded that a cause of action accrued only at the time the support agreement was breached, not at the time the promise of support was purportedly made and that unless the breach occurred prior to January, 2010, the Amendment barred such claims.  In essence, the court in Maeker seemed to adopt the maxim that “ignorance of the law was no excuse”  in retroactively applying this change in the palimony law: namely, if the parties in a non-marital relationship had been operating under an unwritten promise of support prior to the statutory Amendment, they were charged with knowledge of this change in the law and were under a duty to reduce that promise of support to writing and obtain the advice of independent counsel if they wanted the promise of support to be enforceable.  The court also rejected “equitable principles” such as unjust enrichment, quantum meruit, quasi-contract and equitable estoppel along with claims of partial performance as exceptions to the requirement of the Amendment or giving rise to an enforceable promise of support.  I posited that this case seemed to effectively serve as a death knell to palimony claims in New Jersey as rarely, if ever, would such claims be put in writing.  However, writing the obituary of palimony’s demise may have been premature in light of recent legal developments.

First, our Supreme Court on September 10, 2013 granted certification to review the Appellate Division’s decision in Maeker.  While it is uncertain precisely which issue(s) touched the nerve of the Court, this will be the first time they will be weighing in on the January, 2010 statutory Amendment.  Perhaps the Supreme Court will address the constitutionality of the Amendment itself, which the Appellate Division declined to address, in view of the Legislature’s statement that passage of the Amendment was “intended to overturn recent ‘palimony’ decisions”, notably the Supreme Court’s rulings in the Devaney and Roccamonte cases which expanded the scope of such claims.  It is expected that the Supreme Court will hear the matter and render its decision during early to mid-2014.

In the meantime, the trial courts of our state continue to grapple with these issues.  Often trial courts are confronted with an extreme set of facts, as was the case in the matter of Joiner v. Orman,  recently decided by a Family Court Judge in Essex County.  In an unpublished opinion, the court “distinguished” the holding in Maeker when it denied defendant’s motion to dismiss the plaintiff’s palimony complaint, notwithstanding the absence of any written support agreement between the parties.  In that case the parties had a relationship of approximately 39 years, had four children, held each other out as husband and wife, even filing joint tax returns, while plaintiff provided services as companion, homemaker, and mother while the defendant prospered in his career as a television personality, actor and author.  The relationship ended in March, 2010, two months after the effective date of the Amendment to the Statute of Frauds. Although there was no written agreement, the court was of the view that the “uncontroverted evidence” supported a finding that the parties had an express agreement of a promise of support.  Confronted with these facts, the 2010 Amendment and the recent Maeker decision, the court declined to dismiss plaintiff’s palimony claim finding that there was no good reason why a partial or, at the very least, full performance exception should not apply in the context of palimony agreements concluding that neither the Amendment’s plain language nor legislative intent modified the basic definition of palimony, the purpose of the Statute of Frauds, or the common law exceptions thereto.  In doing so, the court found that plaintiff had fully performed her end of the bargain and that in this case “inequities” would result from a denial of the claim.  As such, the court viewed the circumstances of this case so distinguishable from those in Maeker that it declined to adopt defendant’s strict application of same.

Was the result in Joiner simply a case of extreme or bad facts making law – whether good or bad, or is this a precursor of how the Supreme Court may address these issues?  Time will tell.  However the opinion in Joiner demonstrates that despite what may appear to be hard and fast rules, the uniqueness of every family law case and the exceptional circumstances that may exist are fertile grounds for creative lawyering to stretch the legal boundaries to achieve a fair and just result for one’s client.  For more than 35 years, the law firm of James P. Yudes, P.C. has been doing just that, being on the forefront of the law and legal developments, in zealously advocating the interests of our clients.  If you feel you have such a case, our experienced attorneys may be able to help you.