New Jersey Divorce Law Blog

New Palimony Law in New Jersey – Can Its Severity Be Softened By Meeting the Requirements of a NJ Domestic Partnership?

Last year, our blog discussed a proposed New Jersey Senate bill that would change the trajectory of palimony claims in the courts by requiring a signed promise of support between unmarried couples.  Gov. Corzine signed the bill into law this past January.  Unfortunately, this is not good news to all the unmarried people in committed relationships faced with palimony issues.  The Garden State no longer recognizes the concept of “actions speak louder than the written word”  when it comes to financial support and asset accumulation in non-traditional households.

The new palimony law applies whether you are gay or straight, and adds the requirement that you consult with an attorney before signing any written agreement.

Clearly, the New Jersey legislature did not agree with past palimony trend in our court system.  This law was meant to overturn recent “palimony” decisions.    Lawmakers seem to be determined to rein in the latitude the courts were utilizing to impose support and asset accumulation claims based on oral or implied promises.  

As a general statement, palimony, involving an oral or a written promise, was first recognized by the Supreme Court in 1979. The court relied on the law of contracts, finding an oral promise enforceable where a party relies on the representation and promises of support and acts on those promises to their detriment.  But in 2008, our courts seemingly loosened the proof requirements in holding that even cohabitation was not necessary to support a palimony claim, so long as there is was a marital-type relationship.  This was perhaps the trigger for the legislature to step in.

So what should an unmarried couple do to create a writing to demonstrate their “intent” to maintain a martial style relationship with rights accorded to each party?  A starting point is registering under the Domestic Partnership Act (DPA).  The DPA was passed in New Jersey in 2004 and affords legal status to same-sex couples and to unmarried opposite-sex couples over the age of sixty-two.   To get DPA protection, such couples must file a written joint Affidavit, must have a common residence and promise to be "otherwise jointly responsible for each other's common welfare." This can be demonstrated by a jointly-held mortgage, joint rental property, joint bank account, a will, life insurance policy or retirement plan designating the other as a primary beneficiary, or a jointly owned automobile.  They must agree to be jointly responsible for each other's basic living expenses, neither may be in a marriage or another domestic partnership, must have chosen to share each other's lives in a committed relationship of mutual caring, and be at least 18 years old.  

The rights that such couples enjoy under the DPA are a good reason to register.  Domestic partners are allowed to accompany the other when being transported to a hospital or visit in the hospital, to the same extent as would a member of the immediate family.  They are protected under the New Jersey Law Against Discrimination in many critical areas, such as employment, public accommodations, housing, credit and contracting. Such partners are allowed to be a dependent/exemption claim for New Jersey tax purposes as well as exempt from New Jersey transfer inheritance tax on the same basis as a spouse.  Transfers from a domestic partner's qualified pension, annuity or retirement plan to the surviving domestic partner is also exempted from New Jersey Transfer Inheritance Tax.  State employees get health insurance coverage for their same-sex partners just as spouses under the DPA.  State and public employees may also be entitled to pension benefits for their same-sex domestic partners.  

The next and best way to handle this situation is through the use of a cohabitation or prenuptial agreement, where by parties spell out their rights in the event of a termination of the relationship or death.

If you have any questions about this topic, or any other family law related topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond, please contact us by phone at (973) 379-9292, or email us by clicking here.

 

The NJ Senate has rewritten the laws of New Jersey on the subject of Palimony

For reasons unknown to this writer, while the economy continues to falter and unemployment continues to skyrocket, the New Jersey senate has focused its energies on rewriting the laws of this state on the subject of Palimony, requiring all agreements between unmarried cohabitants to be in writing to be enforceable.

As such, regardless of whether you are gay or straight, if you are  living in a family-type relationship with another person and relying on promises of support and asset accumulation with your partner, you need to get it in writing or else those promises will mean nothing.

Ironically, the seminal case in New Jersey dealing with the topic of Palimony acknowledged that unmarried cohabitants living together without the benefit of marriage rarely put their promises down in writing. Yet, our supreme court 30 years ago, acknowledged that if a partner makes promises that the other partner relies upon to her financial detriment, that the court system can provide a remedy. By legislation, New Jersey has decided to abolish that concept and safety net.

Query: If a couple has been living together for the past 20 years without the benefit of marriage, with one partner staying home to raise the children while the other was out advancing his career, why would our legislature feel the need to step in to their lives and say that absent an agreement in writing, the partner who stayed home has no claim for palimony (support or the sharing of assets  accumulated)  since there is nothing in writing between them ?

The New Jersey court system is not overwhelmed by palimony claims. They are expensive to bring and judges are well qualified to consider the unique facts and circumstances of each case. This bill if passed by the Assembly will take away the rights of individuals who would otherwise be entitled to claim support, and may signal the end of palimony claims in New Jersey. Any erosion of legal rights is one that is extremely troubling.

In the meantime, if you are in a long-term relationship or cohabiting with another, then a lawyer should be consulted in order to make sure that there is a written agreement in place that protects your future rights.

If you have any questions about this topic, or any other family law related topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond, please contact us by phone at (973) 379-9292, or email us by clicking here.

 

An end to palimony claims in New Jersey ?

30 years ago, the New Jersey Supreme Court held that a promise (oral or in writing) made by unmarried cohabitants in a marital-style relationship can be enforced, under the concept of "Palimony". Kozlowski v. Kozlowski, 80 N.J. 378 (1979).  This concept has been upheld and expanded upon by subsequent decisions. See e.g. Devaney v. L'Esperance, 195 N.J. 247 (2008), In re Estate of Roccamonte, 174 N.J. 381 (2002).

In its simplest sense, the concept of palimony  means "detrimental reliance" upon the promises of the other. In a marital-type relationship, it is where one party changes his / her financial setting because of the promises of support, asset accumulation, etc by the other party.  It is based on the law of contracts, where an oral promise can be enforced if a party relies and acts on it to their detriment.

Recently the New Jersey Supreme court has further defined the circumstances under which a palimony claim can be filed.  In re Estate of Roccamante, the court held that entering into a marital-type relationship and acting accordingly, was sufficient consideration to enforce a promise for support.  In re Estate of Roccamonte, 174 N.J. 381, 393 (2002).  At the same time, the court clarified that cohabitation i.e. living together in a family setting was an essential requirement for a palimony claim. 

However, in last year's New Jersey Supreme Court decision in Devaney v. L'Esperance the court pulled back slightly from its prior position and held that cohabitation is not an indispensable element of a cause of action for palimony, so long as there is a marital-type relationship.

For reasons unknown to this writer, this pull back on the living together requirement has triggered the New Jersey legislature to jump into the fray and consider a bill under which parties will be required to enter formal written palimony agreements, to be enforceable in New Jersey.  A bill (S2091) going through the New Jersey legislature, that is likely to become law, will modify N.J.S.A. 25:1-5 and require "[a] promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination" to be in writing to be in enforceable.  The stated purpose of this bill is  to overturn the New Jersey Supreme Court's palimony decisions in Devaney and In re Estate of Roccamonte.

This development by our legislature is troubling because it is eroding the intent set forth thirty years ago by the Court's decision in Kozlowski. In Kozlowski, our Supreme court held that if you made representations that another relied upon to his/her financial detriment in a marital style setting regardless of whether that representation was in writing, a court of equity could intervene to prevent an unjust harm / enrichment. Instead, this bill will require people to first register their intent to provide support by signing an agreement, just like in a civil union.

The result is that it will deprive the courts of any ability to decide what is fair and reasonable or make any award in the absence of a written agreement, which is often the case in palimony situations. Similarly, such legislation will require unmarried cohabitants to continually update their "intent" in writing as the length of their relationship expands. If they fail to do so, the intent expressed by them in the first year of living together can bind them 10 - 15 years later, working a potential inequitable result on one and a potential windfall to the other.

As an example, consider a real palimony case previously considered by our court system. in that matter, a woman  lived in Chicago and owned her own business dated a wealthy man from NJ. During the course of their dating relationship, he convinces her to close down her business in Chicago and move in with him in NJ based on an oral promise to care of her. for the next 8 years, they live a wonderful and happy life together, then during the course of a routine medical exam, she is diagnosed with cancer. On her drive home from the doctor, she finds that the gates to their home are locked and her clothing packed and waiting for her outside.  According to the court papers filed in that matter, the man threw her out because he did not want to have to be stuck caring for a woman who was going to die.  Under NJ case law, she had a valid cause of action against him for palimony despite the fact that they never married nor registered their relationship nor signed any type of written agreement. Under the proposed law, would she still have a palimony claim ?

The New Jersey court system is not overwhelmed by palimony claims. They are expensive to bring and judges are well qualified to consider the unique facts and circumstances of each case. The proposed bill will take away the rights of individuals who would otherwise be entitled to claim support, and may signal the end of palimony claims in New Jersey.

If you have any questions about this topic, or any other family law related topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond, please contact us by phone at (973) 379-9292, or email us by clicking here. 

 

 

Welcome to the New Jersey Divorce Law Blog

Welcome to the Diamond and Diamond New Jersey Divorce Law Blog.  The contributors to this blog will be Richard Diamond, a Certified Matrimonial Attorney with twenty-five years of family law experience and Lynn Matits, an associate with the firm. 

The focus on this blog will be to provide information and insight on recent noteworthy cases from the New Jersey Supreme, Appellate and Trial Courts that relate to adoption, alimony, child support, civil unions, custody, divorce, domestic violence, equitable distribution, prenuptial and settlement agreements. 

In addition we will provide practical information and an overview of the New Jersey law that may assist those going through a divorce or trying to resolve a family law matter..

The law firm of Diamond and Diamond practices exclusively in the area of family and matrimonial law and offers expertise in dealing with complex cases.  The firm has offices in Bedminster and Short Hills and serves clients in Bergen, Essex, Mercer, Middlesex, Monmouth, Morris, Hunterdon, Ocean, Passaic, Somerset and Union counties.

If you have any questions about family law  topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond,  please contact us by phone at (973) 379-9292, or email us by clicking here.