For those of you have have followed the continuum in New Jersey’s palimony law, October has proven to be a busy month, with not one but two opinions.
Nearly one year ago, the NJ legislature passed law that, in sum, prohibited the enforcement of palimony agreements that have not been put in writing. When the new law went into effect, we quickly blogged on the breaking news.
With the passage of N.J.S.A. 25:1-5(h) came many questions. Attorneys and litigants wondered what would happen to those cases already pending before the court; what would happen to those who had valid claims for palimony under what had previously been the law in NJ but did not yet act? Lots had an opinion, but really only time would tell. Botis v. Estate of Kudrick, 421 N.J. Super, 107 (App. Div. 2011) provided some guidance, telling practitioners and litigants alike that the statute applied only to suits filed after its effective date.
On October 6, 2011, a Hudson County Superior Court judge upheld a non-written palimony agreement, finding overwhelming evidence that the parties “lived together, and had made a commitment to each other to support each other, to share with each other, and most of all, as is implicit in every agreement, to treat each other fairly and avoid harm to the other.”
In the matter of Fernandes v. Arantes, this same sex couple had been living together since 1996. In 2005, after 11 years of living together in various locations all over the world, they bought a home in Jersey City, however only Arantes’ name was on the deed (although Fernandes’ was added later). The parties never married or entered a formal union but did exchange vows in an informal setting, shared expenses and investments, and supported each other financially, claimed Fernandes.
In April 2009, Arantes obtained a temporary restraining order against Fernandes. The case was dismissed although a no-contact order was issued, which prevented Fernandes from accessing the Jersey City home. On October 20, 2009, Fernandes filed a motion which sought access to the home to retrieve belongings and replacement of $80,000 Arantes allegedly withdrew from a joint bank account. On February 15, 2011, an amended complaint was filed, alleging palimony and unjust enrichment. In defense, Arantes claimed the relationship ended in 2001 and the parties only continued to live together for financial reasons.
After hearing testimony, the trial judge found that the relationship was that of a marital-type relationship. Finding that “[p]arties who entered into these kinds of relationships usually do not record their understanding in specific legalese”, the trial court awarded Fernandes’ claim of palimony, although the amended complaint was filed after the passage of the statute.
As this is a trial court opinion, it is not binding on other courts.
Then, on October 24, 2011, in an unpublished decision, the Appellate Court, in the matter of Loribeth Pierson v. The Estate of Christopher Daul, A-5997-09T4, reversed an Atlantic County trial court judge who dismissed Pierson’s complaint, which asserted a claim for palimony. In this opinion, the Court held that the trial judge erred in finding that the statute applied retroactively to Pierson’s suit, which was filed on January 13, 2010, before the enactment of the statute..
In this case, Pierson claimed that in March 2007, Daul promised to support her for life. She relied upon that promise and relocated to NJ with Daul, who died in July 2008. In reversing the trial judge, the Appellate Court found that the trial judge erred in its application of Botis v. Estate of Kudrick, supra., which clearly states that the statutory amendment did not apply to a palimony suit that was filed and pending before the date of the statute’s enactment. Because of the timing, Pierson’s complaint should not have been dismissed on procedural grounds. Citing Botis the court noted that because Kudrick was dead, there was no opportunity to get the palimony agreement in writing upon the passage of the statute.