Many people think that palimony is just alimony with a “P” and that the mere existence of a long term unmarried relationship, where the people live together, is enough to convey some right of support. Having argued the landmark Maeker v. Ross case regarding palimony in the New Jersey Supreme Court, I have made clear on this blog in the past that that is not the case. Rather, for relationships that existed before 2010, their had to be a promise, express, or implied by conduct, made by the supporting party that he/she intended to support the other person for life. After 2010, a palimony agreement had to be in writing, which, for all intents and purposes have eliminated palimony for post-statute relationships.
That said, we still see cases after the end of long term relationships that predated the 2010 statute, where the parties lived together, and litigation ensues after the relationship ends. One of those cases in the unreported case of Lernihan v. Revolinsky, an unreported (non-precedential) Appellate Division decision released on February 22, 2021. Remarkable about the decision is it’s brevity, a mere 6 1/2 pages. Notwithstanding the brevity, there are interesting things that can be gleaned from the the case.
Here are the relevant facts. The parties met in 1996, later became engaged, but never got married. They lived together in a marital-type relationship from 2002 to 2016 and had two children. They bought and sold two houses, each contributing to the deposit from his or her own earnings and savings. Both worked during the majority of the years they lived together and the only time that the plaintiff was financially dependent on defendant was for the brief periods of time after the birth of their children. That said, even then, she paid from her own funds a portion of the children’s expenses as well as her own. Other than jointly owning their homes, the parties did not commingle their assets. Rather, they maintained separate bank accounts and made defined contributions to their joint expenses. In fact, other than jointly owning their homes, they never commingled their assets or their earnings. At the time of the proposal, the plaintiff was earning approximately $49,250 and the defendant was earning $57,083 – less than an $8,000 difference. By the time of the trial, plaintiff, who obtained a graduate degree while engaged to defendant, was earning approximately $104,301 and defendant was earning $174,147. The only thing in the opinion relative to the promise of support for life that would be required to sustain a claim for palimony was plaintiff’s testimony that she interpreted the engagement “… to mean defendant had committed to support her financially for life.”
The trial court rejected this interpretation finding that plaintiff was not entitled to palimony and the Appellate Division affirmed. The Appellate Division noted the trial court’s rationale, as follows:
Judge Espinales-Maloney found defendant’s denial that he ever committed to support plaintiff for life more credible than plaintiff’s assertion that he had. Indeed, the judge opined that plaintiff was a self-sufficient professional who could “support herself in a reasonable degree of comfort.” In the judge’s view, the facts necessary to establish a successful claim for palimony were entirely absent. Not only was plaintiff defendant’s financial equal when the relationship began, any belief she may have had regarding defendant’s alleged commitment to support her for life was entirely refuted by the manner in which the parties lived and managed their money.
The Appellate Division gave a brief primer on the law on palimony – at least it existed pre-statute, as follows:
The palimony right to support “does not derive from the relationship itself but rather is a right created by contract.” In re Estate of Roccamonte, 174 N.J. 381, 389 (2002). The promise of support can be express, “implied by conduct[,] or both.” Id. at 394. The existence of a contract is determined primarily by the parties’ “acts and conduct in the light of the subject matter and the surrounding circumstances.” Kozlowski v. Kozlowski, 80 N.J. 378, 384 (1979).
For a palimony claim, “there must be a showing of economic inequality and an inability by the party seeking palimony to live independently at a reasonable level of support.” Bayne v. Johnson, 403 N.J. Super. 125, 142 (App. Div. 2008); see also Roccamonte 174 N.J. at 393-94. Courts may also consider other factors, such as whether a party detrimentally relied on the express or implied promise, or whether a party’s decision to move in with their partner was primarily motivated by financial support. Bayne, 403 N.J. Super. at 141-42. However, “palimony is not an economic substitute for opportunities that may have been lost or expectations that were unfulfilled.” Id. at 143.
Plaintiff’s additional requests for relief based upon certain equitable theories – partial performance, unjust enrichment and quantum meruit, quasi-contract, estoppel, specific performance of implied contract, fraud/misrepresentation, and joint venture – also failed because the judge found that defendant never made promises of lifetime support to plaintiff, and plaintiff was financially independent. Thus, the equitable claims
based on alleged promises had no merit. Now too often, I have seen these claims fail because, instead of pleading the specific element of each of these causes of action, parties typically tie them to the alleged promise or implied promise , making them one and the same. Essentially, all of the relief comes down to the alleged promise, as opposed to the conduct/facts necessary to establish each cause of action. That seemingly is what happened in this case.
The take away from this case is that while palimony and equitable remedies still exist for pre-statute relationships, however, the facts need to be there. Before engaging in an expensive and potential fruitless litigation, critical analysis of all of the facts are required.
Eric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or firstname.lastname@example.org.