As frequent readers of this blog may know, earlier this year, we were the winning attorneys in the landmark palimony case, Maeker v. Ross.  My post on that case on this blog was entitled Is Palimomy In New Jersey Over As We Knew It?  Since the Supreme Court recently granted Certification, we will see what they ultimately have to say about this issue some time next year.

In the mean time, a lot has been written about the unreported trial court opinion in the case of Joiner v. Orman  recently decided by Judge Rosenberg in Essex County, suggesting that palimony is alive and well, especially the argument that partial performance is a bar to the statute of frauds (the statute requiring palimony agreements to be in writing was included as an amendment to the Statute of Frauds).  While the palimony opponents could be worried about this decision, it is not precedential (i.e. it doesn’t have to be followed) both because it is a trial court opinion and unreported.  More importantly, the facts of this case seemingly dictated that an equitable result occur.  Some of the more critical facts which were largely not in dispute, are as follows:

  • The parties started dating in 1972 and began cohabiting shortly thereafter
  • During their relationship of approximately 39 years, they celebrated June 11, 1973 as their anniversary
  • The parties maintained a marriage type relationship, holding each other out as husband and wife, raised 4 children and resided together as a family.
  • The parties filed joint tax returns
  • The parties maintained joint accounts
  • The parties purchased real estate together
  • The plaintiff went by the name Joiner-Orman
  • The defendant, who was Gordon on Sesame Street, dedicated his memoir, “To my wife, Sharon Joiner-Orman, thanks for providing this story and my life with true meaning.” A personal copy of the book also bears an inscription, dated June 21, 2006, which states, “To Sharon, thank you for being my wife, my partner, the love of my life. Always and Forever, Roscoe.”
  • Plaintiff provided companionship and social support, took care of the household and raised the parties’ four children.
  • Due in large part to Defendant’s financial success, and Plaintiff’s reliance thereon, Plaintiff never attended college or pursued a career of her own.
  • Plaintiff asserts that it was always her intention to continue residing with the Defendant as husband and wife for the rest of her life as it was their “life plan” to do so.
  • After the parties separated, defendant continued to financially support plaintiff until he remarried

Clearly, these facts are starkly different from Maeker v. Ross.  While Maeker really involved an allegation of an implied promise, here the court found that there was actually an express promise, albeit one that was not in writing.

Further, in addressing the partial performance issue, the court noted:

To date, Maeker is the only reported case to address the partial-performance exception in the context of a post-Amendment palimony claim. In Maeker, the plaintiff brought an action against defendant, which included, among other claims, a claim for palimony…………

Maeker court did not decide whether the partial-performance claim was an exception to the requirements of the Amendment. Instead the court found that, assuming the exception did apply, plaintiff’s pleadings failed to provide a basis for relief. Id. at 94. Specifically, Plaintiff’s pleading alleged that defendant’s performance, not Plaintiff’s, barred defendant from asserting a statute of frauds defense. Id. at 20. Furthermore, the court found that the case was distinguishable from the case relied on by the trial court, Klockner v. Green, 54 N.J. 230 (1969), finding that, unlike Klockner, “there was nothing exceptional or peculiar about the services performed by defendant, and plaintiff, as well as her son, already received the full benefit of those services.” Id. at 22.

Because Maeker was decided on the facts, it does not truly answer whether the exception applies as a matter of law. Moreover, the facts here are different. And it is indeed the facts of this particular case that compel this Court to take a closer look at the issue.  (Emphasis added).

The court then went on to state it’s rationale for finding that palimony was appropriate here:

With these principles in mind, the Court finds there is no good reason why a partial or – at the very least – full performance exception should not apply in the context of palimony  agreements. This case demonstrates the inequities that would result from a denial of the claim. Here, the parties had an oral agreement to reside and work together in marital type relationship. In fact, as far as they were concerned, they were husband and wife. Plaintiff relied on the Defendant’s promises and support for 39 years, gave birth to and raised four children, and generally provided companionship and homemaking. The children are now adults and the parties no longer share the same home. The Court finds the Plaintiff has fully performed her end of the bargain (to put it tersely). In addition, there is no way to quantify the value of the services.  Plaintiff provided over the course of 39 years, much less the value of foregone educational and work related opportunities. What is more, Defendant
does not deny the agreement and even acknowledged the obligation by deeds and words. Where then is the risk of fraud? The Court believes the risk lies in barring Plaintiff’s claim. Therefore, the Court holds that the partial or full performance exception can remove oral palimony agreements from the statute of frauds and further finds the facts satisfy the Plaintiff’s claim.  …..

… Instead, the Court is hopeful that its decision promotes the common mantra of the Chancery Division that “equity regards and treats as done what in good conscience ought to be done.” Gallicchio v. Jarzla, 18 N.J. Super. 206, 214-15 (Ch. Div. 1952).  (Emphasis added)

So there it is.  The parties acted as if they were married in all ways, but for the actual marriage.  The court did what it thought was fair.  End of story.  That said, this case in factually different from most palimony cases that we see, so it is easy to see how this decision, in the context of its specific facts, came to be.  Whether this will survive appellate scrutiny remains to be seen.


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 Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

If there is cohabitation by an ex-spouse who receives alimony, the ex-spouse is at risk not only to a potential decrease in alimony but also at risk for a total termination of alimony.  On March 7, 2013, the New Jersey Appellate Division released the published decision of Reese v. Weis upholding a trial court’s termination of permanent alimony as a result of cohabitation.

As we have blogged in the past, cohabitation is considered a change of circumstances that warrants review of alimony.  New Jersey Courts have described “cohabitation” as involving an “intimate” “close and enduring” relationship “requiring more than a common residence”  whereby the “couple has undertaken duties and privileges that are commonly associated with marriage”.

Once cohabitation is established, the dependent ex-spouse has the burden of proving that he or she continues to be dependent upon the alimony being paid regardless of the cohabitation.   When a dependent ex-spouse economically benefits from the cohabitation, his or her support may be reduced or terminated.  A reduction is appropriate where the dependent ex-spouse can prove that he or she still has some need to the support taking into consideration the economic benefit received from the cohabitation. 

What triggers a reduction versus termination?  In the 46 page Reese decision, the Court concluded that the lower Court’s termination of the dependent ex-spouse’s alimony as a result of cohabitation was appropriate for the following reasons.

First and most importantly, the dependent ex-spouse did not prove a continued need for support.  The dependent ex-spouse asserted that her partner did not subsidize any of her expenses and that her expenses and those of the parties’ children were paid solely by her.  In the alternative, she argued that if the Court found that the partner was providing a financial benefit to her, such benefit did not equate to a total elimination of support.  Unfortunately for the dependent ex-spouse, during the trial, she could not articulate or provide evidence as to her actual need for continued support and how the cohabitation did not impact or only minimally impact  her financial needs. 

Second, the partner provided a direct economic benefit to the dependent ex-spouse by directly paying a significant amount towards the dependent ex-spouse and the parties’ children’s expenses (such as housing, food, clothing, transportation, etc.).

Third, the partner provided indirect economic benefits to the dependent ex-spouse including gifts and luxury vacations which enhanced the dependent ex-spouse’s lifestyle.  It was virtually impossible for the trial court to discern the household financial contributions by the dependent ex-spouse and by the partner because of their intertwined finances.

Fourth, the total years that the dependent ex-spouse and the partner resided together exceeded the term of her marriage to her ex-husband who was paying alimony and child support in excess of $235,000 per year.  In short, the partner not only provided direct and indirect economic benefits to the dependent ex-spouse but elevated her lifestyle for a period longer than the parties enjoyed their marital lifestyle.

The majority of the Reese opinion centered on the cohabitation issues.  However, the Court also noted that despite the fact that the application to terminate support was filed after there had been ten years of open cohabitation, the ex-husband was not precluded from filing the application after all those years.

The Reese decision shows that when a dependent ex-spouse chooses to reside with a partner, modification of alimony payments are not solely based upon the partner’s dollar for dollar contributions to the relationship but the enhancements to the standard of living of the dependent ex-spouse by the partner and the length of the cohabitation versus the length of the marriage to the party paying alimony also weigh into the Court’s analysis.

It seems as though a wave of cohabitation cases has recently swept across the Appellate Division in New Jersey. And for good reason. While well-settled is the concept that a supported spouse’s cohabitation typically will constitute a change of circumstances sufficient to justify end of a supporting spouse’s alimony obligation, the nuances of the law can be quite involved. This can been seen from the Appellate Division’s February decision in the case of Wonderlin v. Wonderlin, on which Sandra Fava blogged. That holding came down to evidence of the times and frequency that an unrelated male came and went from a former wife’s home, which, the Appellate Division ruled, entitled a former husband to discovery on the issue of whether the wife was cohabitating.

While the comings and goings of an unrelated male can be one indicia of cohabitation, in the case of Okoshi-Wilson v. Wilson, the Appellate Division examined a different source to prove cohabitation: the wife’s earnings as compared to her expenditures. There, the husband moved for a termination of his alimony obligation on the basis of the wife’s cohabitation with an unrelated male.

It seemed, based on the proofs submitted, that the husband had always earned a significantly greater salary than the wife, with the wife only earning about $47,000 in 2008 after her alimony of $22,500 per year was considered, as compared to the husband’s $164,164 the year prior. Despite this fact, the wife was apparently living in a posh, three-bedroom Upper East Side apartment, which she clearly was unable to afford on her salary alone. As it turned out, also a tenant of the same apartment was an unrelated male by the name of Steven Macy. This revelation led to the husband’s application for a termination of his alimony obligations. During the hearing at the trial level, Okoshi admitted that she had been able to maintain her New York City residence, because she was Macy’s tenant, allegedly paying him only $135 per week in rent and household work such as watering the plants, purchasing food, and collecting the mail. She further testified that Macy and his daughter only stay at the apartment about five times per month. Okoshi had documents to support some of her assertions — a lease signed by her and Macy and receipts for rent she paid in cash. She denied any romantic involvement with Macy and said he does not support her in any way.

Continue Reading Can a landlord-tenant relationship terminate an alimony obligation based upon cohabitation?

On March 10, 2009, the Appellate Division issued a precedential (reported) decision on the issue of the possession of a dog in the case of Houseman v. Dare.  To see the full text of the case, click here.

The parties were together for 13 years.  In 1999 they purchased a house together.  In 2000, they got engaged (but never married).  In 2003, they purchased a pedigree dog for $1,500.  Both parties were listed as the owners on the papers filed with the American Kennel Club.



In May 2006 Dare decided to end his relationship with Houseman. At that time, he wanted to stay in the house and purchase her interest in the property for $45,000 which was what he represented half of the equity to be. In June 2006, she signed a deed transferring her interest in the house to him.  When she vacated the residence in July 2006, Houseman took the dog and its paraphernalia with her. 

There seems to be little dispute that there was an oral agreement that Houseman was going to take the dog with her as her own when the parties separated.  However, thereafter, she allowed Dare to visit with the dog.  On one occasion in 2007 after watching the dog while Houseman was on vacation, he refused to give the dog back and the lawsuit ensued wherein she sought specific performance of their agreement that she keep the dog.  

Continue Reading It’s A Dog’s Life – The Appellate Division Issues Reported Decision on Possession of a Dog

On February 3, 2009, my colleague, Katherine R. Sookhoo, an associate in or Philadelphia office,  wrote a very interesting article on cohabitation in our Pennsylvania Family Blog entitled For Love or Money.  I found the blog interesting for two reasons.  First, the rule of law between Pennsylvania and New Jersey are significantly different.  Second, although different, the difficulty litigants have in either jurisdiction in proving that their ex-spouses are cohabiting is the same. 

Pursuant to the Pennsylvania Divorce Code, divorce litigants are not entitled to alimony if they cohabit after they have been divorced.   However, in Pennsylvania, in cases resolved by way of Property Settlement Agreement, the Pennsylvania Divorce Code provision applies only if the agreement specifically states that cohabitation terminates alimony.

Unlike Pennsylvania, New Jersey statutory law does not prohibit receipt of alimony payments based upon cohabitation.  In New Jersey, while cohabitation may be considered a change in financial circumstances that permits a review and/or a modification of alimony, the fact that an ex-spouse cohabits does not necessarily mean that alimony will be terminated.  Konzelman v. Konzelman, 158 N.J. 185 (1999). 

While Pennsylvania and New Jersey have differing laws regarding cohabitation, both jurisdictions are plagued with the uncertainty of how the Court’s define "cohabitation".  In Pennsylvania, there has to be a showing of a financial, social and sexual link, by sharing the same residences.  Miller v. Miller, 508 A.2d 550 (1986).  In New Jersey, the New Jersey Supreme Court  noted that “to constitute cohabitation, the relationship must be shown to be serious and lasting” and that  “a mere romantic, casual or social relationship is not sufficient to justify enforcement of settlement agreement provision terminating alimony upon dependent spouse’s cohabitation; such a provision must be predicated on a relationship of cohabitation that can be shown to have stability, permanency, and mutual interdependence” Id.  

Therefore, does cohabitation exist if your ex-spouse and her paramour switch back and forth in sleeping in their respective residences?  If they stay together only on weekends?  If they have resided together for a month?  How about a year?  What if their finances are totally separate? In either Pennsylvania or New Jersey, the answers to those questions are not entirely clear and Courts determine the issues on a case-by-case basis.

Because there is no exact definition of "cohabitation", proving that cohabitation exists may be tricky and requires a thorough analysis of the circumstances before raising the issue in Court.  If a litigant is going to allege cohabitation, before doing so, they should make sure that factually and legally, they have enough to get beyond the "grey" area because (1) if you are going to proceed in Court, you want to prevail; and (2) you don’t want to go to Court, lose, and give your ex-spouse the ability to further avoid termination of alimony now that they know your on to the cohabitation.   

 EDITOR’S NOTE:  Apple is absolutely correct regarding the grey areas. That said, there have been a number of unreported Appellate Division decisions over the last year or so that have been more permissive in what amounts to cohabitation.  Specifically, many of the cases suggest that staying together every single night may not be required, and that the location is not entirely important (ie. some nights at her house and some nights at his house.) 

However, once some semblance of cohabitation is shown, unless the divorce Agreement specifically calls for the termination of alimony, and most don’t, the next issue to address is the financial interdependence between the former spouse and cohabitant.  Put another way, cohabitation is not enough to terminate alimony in the typical case.  You have to look at the financial impact of the cohabitation.  Eric S. Solotoff


The law surrounding palimony has been fluid in the last several months as the New Jersey Courts have refined litigants rights after the break up of relationships in which the parties were not married. Most of the decisions are consistent with the New Jersey Supreme Court’s decision in Kozlowski v. Kozlowski, 80 N.J. 378 (1979), which had held that a promise of lifetime support by one cohabitant to another in a marital-like relationship would be enforced, if one of the partners was induced to cohabit by the promise.  The court held that the right to such support is found in contract principles and that the contract may be either express or implied. This principle has been upheld consistently by the Courts.


In a most recent case, however, Bayne v. Johnson, decided October 27, 2008 and approved for publication, the Appellate Division denied palimony to a woman who had had a long standing, marital type relationship with her paramour. The unique facts in this case involved an entrepreneur, Earl Johnson, who had married a wealthy woman twenty years his senior for convenient purposes. In 1981, Mr. Johnson met, Fiona Bayne, a flight attendant, on a trip between London and Dublin. Over the course of the next 19 years, they engaged in a serious relationship. At first, Ms. Bayne did not know about Mr. Johnson’s marriage, but eventually found out. After getting over the initial shock, the three proceeded to live together in different locations including Florida, Las Vegas, Chicago, the Bahamas, and New Jersey. During this time, Ms. Bayne became the caretaker of Mr. Johnson’s wife, and they lived an upscale lifestyle which was in part over the years supported by a joint bank account to which the three had access and was funded by the significant trust income of Mrs. Johnson. Ms. Bayne’s name was listed on this account as “Johnson”, and there was testimony that Mr. Johnson and Ms. Bayne held themselves out to be husband and wife. During the course of the relationship, Ms. Bayne was heavily involved in certain business interests of Mr. Johnson, as a manager. Although Mr. Johnson had many business interests throughout this time, most were not successful and the parties’ lifestyle was derived from the income of elderly Mrs. Johnson.


In 2000, Ms. Bayne left Mr. Johnson. She initially remained on the East Coast, but then returned to her home in the UK. She subsequently sued Mr. Johnson, claiming that she was entitled to palimony based on an alleged agreement to pay her future support.


The Appellate Division found that Ms. Bayne was not entitled to palimony. The Court agreed with the trial court which found that there was a marital type relationship between Mr. Johnson and Ms. Bayne, which is the first requirement for a palimony award. However, the court disagreed with the trial court’s finding that there was an implied promise by Mr. Johnson to support Ms. Bayne for her life. The Appellate Court determined that Ms. Bayne knew that Mr. Johnson was essentially a failed entrepreneur, and that she knew that he was dependent on his wife’s money. Thus, her request for palimony was denied based upon the fact that at the time of their separation, Ms. Bayne was actually more economically self sufficient than Mr. Johnson. The court pointed out the essential fact that palimony is the enforcement of a broken promise made for future support, and not compensation for years spent in a failed relationship.


Almost as foreshadowing, on October 2, 2008, S-2091 was introduced by State Senator Nicolas P. Scutari introduced legislation which is intended to overturn these "palimony" decisions by requiring that any such contract must be in writing and signed by the person making the promise. More specifically, the bill provides that a promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination, is not binding unless it is in writing and signed.  To see the bill, click here.


There is not doubt that there will be spirited debate on the issue of whether the legislature should prevent a court of equity from determining whether one is entitled to palimony. It appears from the Bayne case that the Courts are more than able to review each case on its own fact and merits and determine when relief is appropriate.


EDITOR’S NOTE:  If and when the proposed palimony bill is passed, we will update the blog accordingly.  If it is passed, that will essentially represent the death knell of palimony cases because the promise is virtually never put it writing.  it would also do away with the concept of "implied promise" found in these cases.   Eric S. Solotoff