Over the years, I have written a lot on palimony cases, both before and after the landmark Maeker v. Ross case that I argued in the New Jersey Supreme Court.  On March 8, 2022, I blogged on the Supreme Court’s decision in the Moynihan v. Lynch case which did away with the requirement in the Palimony statute that the parties have separate counsel to negotiate a palimony agreement.

Less than two months later, there is another significant palimony case on this topic, this time decided by the Appellate Division.  Specifically, on May 6, 2022, in a reported (precedential) decision in the matter of Primmer v. Harrison, the Appellate Division decided the Monynihan should be given retroactive effect.  Specifically, they held that, “In sum, the holding in Moynihan applies retroactively to written palimony agreements reached prior to the Court’s ruling, where such agreements are otherwise enforceable.”

The facts in this case are fascinating.  The parties began cohabiting in 1988 and ended their relationship in 2011. They had no children together.   Plaintiff earned about $50,000 per year; defendant, a lawyer, earned “far more.”  When the relationship ended, they started to negotiate a written agreement with the help of an attorney who was defendant’s “long time friend”, who plaintiff “had met and
befriended through defendant.  The lawyer practiced family law but never served as a mediator. He helped the parties resolve the dissolution of their relationship, but did not open a mediation file, hold a mediation session, bill the parties for mediation services, or ask the parties to sign a mediation retainer.  The parties did not exchange Case Information Statements or otherwise disclose their assets and further, conducted no discovery.  Plaintiff asserted to the lawyer and others that she feared she lacked the means to support herself.  Defendant was anxious for her to move out.  At some point, plaintiff hired counsel and the lawyer started acting on behalf of the defendant, which he represented verbally and in writing.

The agreement contained boilerplate that the parties “made a full disclosure of all relevant financial information” though they didn’t nor apparently, even inquire.  It also contained language suggesting that defendant’s lawyer was their mediator, though that stopped being the case at some point.  The agreement provided that the parties would share in the $140,000 downpayment for a condominium that plaintiff would purchase, but that defendant would put up all of the money up front and get paid after 3 years without interest, and then at 1% interest after 3 years. Defendant agreed to pay the mortgage and real estate taxes, condominium dues, assessments, and insurance. He also agreed to pay plaintiff $1,500 per month on a permanent  basis. The agreement stipulated “[p]ayments after the fifth [of the month] shall include a late fee of $100 per day.”  After the agreement was signed, plaintiff filed a palimony complaint (in 2011) seeking a judgment incorporating the agreement.  The complaint was ultimately dismissed, but the parties lived by the terms of their agreement until 2017, except that plaintiff did not repay her share of the down payment.

In July 2017, defendant stopped paying the $1,500 a month and the following month, had a lawyer write a letter declaring the agreement to be null and void because defendant was not represented by counsel as required by the palimony statute.  subsequently informed plaintiff he would stop paying for her cell phone, mortgage, and home maintenance which led to plaintiff filing a Complaint seeking damages for breach of the Agreement in the Law Division.  Defendant responded that the agreement should be voided because he did not have the independent advice of counsel.  He also alleged that plaintiff never disclosed that she possessed over
$400,000 in bank accounts and over $800,000 in retirement savings as of 2018.  The matter was transferred to the family part and ultimately tried.  Prior to trial, defendant moved in limine to bar plaintiff from introducing parol evidence contradicting the agreement’s provision that he was not represented by counsel. The judge denied the motion, stating: “The court believes that it can hear the testimony as the trial proceeds and make determinations as to admissibility as the issues arise.”

After a 2 day trial where the court found plaintiff credible and that defendant and the lawyer were not credible, the trial court enforced the agreement, holding:

agreement was enforceable and not barred by the Statute of Frauds because “defendant continued to make [monthly support] payments for six years[,] . . . which were an integral part of this agreement.” He found the continued payments were “substantial part performance as well as justifiable reliance by . . . plaintiff on that performance to indicate that an agreement had been reached.” He found the Statute of Frauds was satisfied because the negotiations between counsel, demands made by the lawyer (sic), and the lawyer’s (sic)participation in crafting the final agreement “point to the inescapable conclusion that . . . the lawyer (sic) did in fact provide independent counsel to [defendant] with regard to this agreement.”

The trial judge also rejected defendant’s fraud claim.  He also awarded plaintiff $108,300 representing 1,083 days of penalty at $100 per day. The judge found the interest provision set forth in the agreement was defendant’s remedy for enforcement of plaintiff’s obligation to repay the $70,000 down payment.

While this appeal was pending, the Moynihan matter was decided so the Appellate Division gave the parties the chance to brief the retroactive issue, ultimately concluding that retroactivity applied. In rejecting defendant’s opposition to Moynihan being applied retroactively, the Appellate Division noted:

The gravamen of Moynihan is that the statutory requirement to have counsel violated fundamental constitutional rights. It matters not that this was not a basis of either party’s claims at trial here because, in the end, defendant invoked the  invalidated portion of the statute as a sword to attempt to avoid the parties’ agreement despite the fact they both viewed it as valid and honored its terms for many years. To ignore Moynihan by declining to apply it here would run contrary to the parties’ conduct and frustrate their bargain, precisely the harm the Court intended to prevent. …

Therefore, even if there were a proverbial pipeline full of cases, we are confident Moynihan would not upset matters where the parties have reached an otherwise enforceable settlement.

Quite frankly, given the trial court’s finding that the attorney was not the mediator, but rather, represented defendant, that ruling appears superfluous, though it avoids having to address the thorny issue of attorney switching from mediator to partisan attorney, and then his incredible testimony that he didn’t represent defendant, despite everything else to the contrary other than some boilerplate in the agreement that wasn’t change after his role changed.


Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 esolotoff@foxrothschild.com.

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