Rights of Unmarried Couples
In 1939, the State of New Jersey stopped recognizing common law marriages. Up until 1979, heterosexual couples who resided together in New Jersey for a specific period of time were considered legally married by the state. Therefore, each party would be obligated to support the other, which may result in one party supporting the other if the relationship ended. However, when New Jersey outlawed common law marriages, unmarried couples who ended their relationships were not entitled to the rights incumbent upon their married counterparts; particularly alimony and equitable distribution. Palimony was an equitable remedy created by the courts to afford another type of financial relief to these unmarried individuals.
The concept of palimony was initially recognized by the Supreme Court of New Jersey in 1979. The Supreme Court held that a promise by one partner to care for the other for life will be enforceable under appropriate circumstances. In determining whether the promise should be enforceable, the Supreme Court did not require the terms of the promise to be in writing, but rather focused on the parties’ respective versions of the agreement, along with their conduct in light of the prevailing circumstances.
Although the Legislature did not enact a statute codifying the judicially created remedy of palimony in 1979, the courts continued to expand upon the circumstances in which palimony would be awarded. In 2002, the Supreme Court held that cohabitation was not necessary to establish a claim of palimony, although a marital-type relationship was required. Subsequently, the Supreme Court found that an implied promise to support the other partner for life is enforceable against the promisor’s estate.
On January 18, 2010, former Governor Jon Corzine signed into law the statute codified as N.J.S.A. 25:1-5, which dramatically changed the requirements regarding a palimony claim. The statute states in relevant part:
No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:
h. 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. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.
Accordingly, under the enacted statute, palimony claims are unenforceable unless the promise is made in writing upon the independent advice of counsel. The looming question then became how these newfound conditions affected unmarried couples already in a relationship at the time this statute was enacted in 2010. Although the bill reflected the statute would take “effect immediately,” this vague language did not provide much guidance.
On September 25, 2014, the Supreme Court, provided a definitive answer as to whether the statute applied to those unmarried couples already in a relationship. The Supreme Court determined the Legislative intent of enacting N.J.S.A. 25:1-5(h) was not to void any oral palimony agreements made prior to the enactment of the statute. Thus, the question to consider is when the alleged promise to support was made rather than when it became enforceable as a cause of action. If the promise was made before the enactment of the statute in 2010, a palimony claim can be sought even if the promise/agreement was not reduced to writing. If the promise was made after 2010, the promise must be reduced to writing with the aid of counsel (for both parties) in order for a palimony claim to be made.
While the number of oral palimony claims will inevitably be reduced in the future, we will continue to see many cases involving this cause of action in the interim. At Donahue, Hagan, Klein & Weisberg, LLC, the attorneys are well versed in assisting with any palimony claims and are able to assist with preparing an agreement for this relief in accordance with N.J.S.A. 25:1-5(h).
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