Palimony is claim made, typically, by a unmarried cohabitant, seeking money because the other party made a promise to support her or him for life. The promise can either be express or implied by the parties’ conduct. If successful in proving the claim, the recipient is entitled to a lump sum equal to the present value of being supported for life based upon the recipient’s life expectancy.
On June 17, 2008, the long awaited opinion from the New Jersey Supreme Court in the case of Devaney v. L’Esperance was released.
After a number of of Appellate Division cases in the last several years, including this case, held that a bright line for palimony cases was cohabitation, the issue was ripe for review by the New Jersey Supreme Court, especially after a 2007 decision by Judge Hayden, in Federal Court, questioned whether the New Jersey Supreme Court would require cohabitation.
The facts in Devaney are as follows. In 1983, Helen Devaney, then twenty-three years old, began working for Francis L’Esperance, Jr. (then 51 and married to his current wife for approximately twenty years) as a receptionist for his ophthalmology practice. The parties began
a twenty-year long intimate relationship. During that time, L’Esperance continued to live with his wife and never cohabited with Devaney, though for a time they vacationed and had dinner together several time per week. L’Esperance also promised to divorce his wife, marry Devaney, and have a child with her. However, not happy with L’Esperance’s failure to keep his promise, Devaney moved to Connecticut and then to Seattle, Washington. She moved back to New Jersey to
a condominium leased by L’Esperance because he again promised to leave his wife, marry her, and have a child with her. It was not disputed that L’Esperance provided financial support to Devaney, including purchasing the condominium unit; paying for her undergraduate and graduate education , purchasing a car for her use; and provide her with money for various other expenses. However, L’Esperance’s promise to divorce his wife and marry Devaney was unfulfilled. The parties also decided to have the baby, but Devaney learned that she would have difficulty conceiving., L’Esperance then decided he did not want another child. The relationship eventually ended, Devaney began a relationship with another man, and L’Esperance evicted Devaney from the condominium.
Both the trial court and Appellate Division found that the parties did not have a marital type relationship but rather, only had a "dating relationship." Ultimately, the Supreme Court agreed and affirmed the denial of palimony.
However, they also held that though cohabitation is one of the many factors a trial judge should consider in determining whether a plaintiff has proven a marital-type relationship to support a claim for palimony, it is not essential. The Supreme Court further held that in these highly personalized cases, it is conceivable that a plaintiff, even in the absence of cohabitation, may establish a marital-type relationship and prove a claim for palimony.
Given that the claim is based upon the promise of support, the decision is not surprising.
While all seven justices agreed with the result, there were two concurring opinions. One was written by Justice Long, who expressed concern that the court’s ""broad requirement of a marital-type relationship." Justice Long felt that was entirely appropriate in an implied contract case (i.e. one where there was no direct promise of support for life but where it could be inferred by conduct), she was concerned that it "… would be carried over and bar enforcement of an express contract for lifetime support based upon some other type of consideration." As such, Justice Long wrote "… only to flag the issue for future consideration."
Justice Rivera-Soto concurred in the decision since palimony was not awarded, but believed that cohabitation or a writing confirming the agreement should be required. This was based upon his analysis of the law of all of the other states. His rationale was "… because they are easy to allege yet inherently contrary to fundamental legal concepts, palimony claims must be viewed with great skepticism and must be subjected to harsh and unremitting scrutiny."
To read the opinion, click here.