Regular readers of this blog know that we were involved in the landmark palimony case, Maeker v. Ross, which was recently decided by the New Jersey Supreme Court.  We previously blogged about our win in the Appellate Division.

Unfortunately, the Supreme Court reversed, holding that the Legislature could not have intended for the statute to apply retroactively to existing contracts.  This is despite the fact that the statute clearly said that “no action shall be brought” unless the palimony agreement was in writing and the fact that the preamble to the statute specifically cited Supreme Court cases that the statute was meant to overturn.

In perhaps a continuation of the battle royale between the Supreme Court and the Legislature on this issue, on October 27, 2014, Senators Scutari and Cardinale introduced S2553 which made clear that the 2010 statute was intended to apply retroactively.  The synopsis of the statute is as follows:

Makes retroactive current law requiring “palimony”  agreements to be in writing; provides that pre-existing palimony agreements are unenforceable unless put into writing within one year of enactment of this bill.

The statement after the language of the proposed statute is even more clear:

P.L.2009, c.311, enacted January 18, 2010, required that any “palimony” agreement must be in writing to be enforceable. The enactment amended R.S.25:1-5 to provide that a promise by one party to a non-marital personal relationship to provide support or other consideration to the other party, either during the course of such relationship or after its termination, is not binding unless it is in writing and was made with the independent advice of counsel for both parties.

In Maeker v. Ross, 2014 N.J. LEXIS 910, decided September 25, 33 2014, the New Jersey Supreme Court held that the Legislature did not intend the enactment to retroactively apply to palimony agreements made prior to the effective date of the enactment, and that such pre-existing palimony agreements are enforceable even if they were never put into writing. This bill would address the court’s decision by clarifying that P.L.2009, c.311 is intended to be retroactive. This bill provides that palimony agreements made prior to January 18, 2010, the effective date of P.L.2009, c.311, would be enforceable only if they are brought into compliance with P.L.2009,c.311 within one year of the effective date of this bill.

In essence, the concept of the ability to cure – that is, to get a writing put into place to confirm the existence of the palimony agreement – would be codified.

While this is a small measure of vindication for our position, who knows if it will be passed.  Stay tuned.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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  • David Perry Davis

    Eric, as you know, the Supreme Court punted on the bigger question — whether partial performance of a contract brings a dispute outside of the statute of frauds (Brian Paul’s argument). For non-lawyers, this means that the “Statute of Frauds” (the law that requires that some contracts have to be in writing to be enforceable) does not apply when the parties to the contract have partially performed its terms. This is relevant / key here because the “anti-palimony law” (and new bill) was enacted as an amendment to the Statute of Frauds. If Brian’s argument (which the Supreme Court didn’t address as they resolved the case for other reasons) prevails, then the amendment Scutari is proposing would still be irrelevant…. Since one party to a palimony action (the party being supported) has already performed her end of the contract (“partial performance”) the Statute of Frauds will be irrelevant, regardless of the changes.

    The bigger problem with palimony, of course, is that our courts made it way, way too easy for someone to assert a claim. Far from the facts where most people would agree it’s appropriate (where people live in a marriage-like relationship for many, many, many years and one party gives up their ability to earn as a result of providing homemaking services), the Supreme Court held that the parties don’t even need to live together for someone to get sued for palimony. Over the top, and thus the legislative actions.

    As you say — stay tuned, the final word on palimony is yet to be heard.