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What rights do people have to an equitable distribution of assets stemming from a period prior to the marriage itself?  If there is no right to equitable distribution under those circumstances, then what rights exist and what remedies can be implemented to protect those rights?  In Thieme v. Aucoin-Thieme, a post-Judgment dispute involving several interesting issues including the equitable distribution of marital assets, distribution of assets pursuant to equitable principles stemming from a pre-marital cohabitation period, and the remedy of a constructive trust in connection with an ex-husband’s receipt of a bonus, the Supreme Court of New Jersey primarily held that:

  1. said bonus received by the ex-husband (Michael) was subject to equitable distribution to the extent it was earned during the parties’ marriage; and
  2. the matter’s “extraordinary circumstances” merited imposition of a constructive trust to protect the ex-wife’s (Bernice) claim of unjust enrichment and request for a portion of the bonus earned during the parties’ pre-marital cohabitation period.

Before even getting into the details of what happened, what is, perhaps, most interesting about this matter is not the very specific facts and circumstances at issue and how such circumstances led to an understandably fair result but, rather, how this case addresses the sort of equitable claims that may arise in connection with a palimony claim that were kept alive in Maeker v. Ross.  While the 2010 amendment to the statute of frauds requires that all post-amendment palimony agreements be in writing, this case also provides a window to argue around the amendment in certain cases if no writing exists – in other words, even without a written palimony agreement for a post-amendment case, the equitable arguments discussed in Maeker can still be made to procure relief.  The case certainly is not limited to that sort of analysis, and, in because of the unique circumstances at issue it even seems to overcome prior case law suggesting that the rights of cohabitants come to an end once the marriage occurs.  With that being said, let’s take a look into what happened…

Here are the unique facts you should know:

  • Michael and Bernice cohabited for eight years and were then married for a brief time.
  • During the cohabitation period and marriage, Michael was an employee of a company called IBG.  He had no ownership interest in IBG, but the company’s principals made a written commitment to Michael that IBG would compensate him for his contributions to the company if it sold.  A written Statement of Understanding was executed, and Bernice’s knowledge as to same was the subject of dispute at the subject post-Judgment trial.
  • Based on that commitment, Michael and Bernice “made personal and financial decisions” with the expectation of such future compensation including, but not limited to, Michael working and traveling extensively for the company, Bernice foregoing employment to devote her time to the parties’ child, and the parties purchasing a new home.
  • The parties divorced and the resulting settlement agreement distributed their assets.
  • During the divorce negotiations, the parties discussed Michael’s potential receipt of deferred compensation or some form of ownership stake in the company, with Michael representing that it “may never happen,” and that he did not anticipate a “big cash payment.”  He further indicated to Bernice that they could revisit the issue in the future should something transpire with the company.
  • Three months after the divorce concluded, IBG was sold and paid Michael $2.25 million (described as a “closing bonus”) for his contributions to the company.  The bonus was paid in accordance with the earlier Statement of Understanding and was paid “to show our appreciation for [Michael’s] contributions in helping [IBG] grow into the successful organization that it is today.”  During a deposition, a company representative testified that the bonus was based on Michael’s contribution to the company over thirteen years and that Michael did not know about the sale before its completion.
  • Bernice first learned of the bonus payment when Michael deposited the money into a bank account that, unknown to Michael, remained a joint account despite the divorce.  Bernice, without notice to Michael, withdrew the funds from the account.
  • Bernice then filed an application for a share of the closing bonus.
  • The trial held that Bernice was entitled to distribution of the bonus, but only that portion stemming from Michael’s work during the marriage.  The Appellate Division affirmed the trial court.

In affirming in part and reversing in part, the Supreme Court, in a decision authored by Justice Anne Patterson, held as follows:

  • It would contravene New Jersey’s equitable distribution statute to find that the portion of the bonus earned prior to the marriage was a marital asset subject to distribution.  As a result, the Court held that the trial court properly allocated the pre-marital and marital periods in determining what portion of the bonus was subject to equitable distribution.  While arguments can be made that this component of the trial court’s decision should not have been upheld based on how the marital portion of the bonus was calculated, that is not the primary focus of the case or this blog post.
  • As Justice Patterson noted, however, the story was not over.  As for that portion of the bonus earned during the parties’ cohabitation period, the Court addressed whether Bernice had made a claim of unjust enrichment.  Addressing a claim for unjust enrichment and its related remedies, the Court provided:

To prove a claim for unjust enrichment, a party must demonstrate that the opposing party ‘received a benefit and that retention of that benefit without payment would be unjust.’

  • Bernice would also have to show that she “expected remuneration” from Michael at the time she “performed or conferred a benefit” on Michael and that “the failure remuneration” enriched Michael “beyond [his] contractual rights”.
  • In the event of unjust enrichment, a court may impose the remedy of a constructive trust to prevent such enrichment.  Legally speaking, a constructive trust is “the formula through which the conscience of equity finds expression.  When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.”  More generally, such a trust is a remedy designed to protect a party harmed by another party’s receipt or retention of property procured through unjust enrichment or some other wrongful means (fraud, mistake, undue influence, and the like).
  • Relying on its prior decision in Carr v. Carr, wherein the trial court equitably imposed a constructive trust awarding a wife a share of the marital assets controlled by the husband’s estate where the husband died during the divorce proceedings, the Court here held:

As the evidence presented at trial made clear, the prospect that [Michael] would be generously compensated was a significant factor in the parties’ personal and financial planning from the early stages of their relationship.  [Michael] and [Bernice] each relied on the expectation of deferred compensation if IBG were sold as they made important decisions for themselves and their family.

The parties’ shared anticipation that [Michael] would be paid deferred compensation was more than wishful thinking.  Given IBG’s written commitment to [Michael], and its owners’ genuine desire to reward their valued employee, both parties had reason to anticipate a significant payment in the event of a sale.

. . .

[I]t is clear that on multiple occasions [Michael] advised [Bernice] about his expectation that any sale of IBG could generate a substantial financial reward for their family.

. . .

[I]BG’s commitment to reward him was an important consideration in the decisions made by the parties throughout their cohabitation and marriage . . . In short, as they planned their finances and personal lives, [Michael] and [Bernice] anticipated that they might someday share in the proceeds of the company’s sale.

During the parties’ eight years of cohabitation, and for most of their brief marriage, [Bernice] undertook significant efforts to support [Michael’s] challenging career.

. . .

Indeed, [Michael] himself recognized that [Bernice’s] contributions to their family should be rewarded.

. . .

Accordingly, the record supports the conclusion that [Bernice’s] decision not to seek further education and employment was made, at least in part, in reliance on [Michael’s] financial commitment to her.

As family law practitioners, Thieme v. Aucoin-Thieme provides guidance as to how to not only bring an equitable claim stemming from a period when parties were not married, but also the sort of appropriate remedy that can be imposed in the event of a viable claim.  In a way, despite its specific factual scenario, it also opens the door to creative lawyering as to when these types of equitable claims could come into play.  Especially in the context of a palimony matter where other related equitable claims are raised, there is, perhaps, more opportunity to overcome an adverse party’s argument that all of the equitable claims are simply palimony claims dressed in different clothes.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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The doctrine of fugitive disentitlement bars a fugitive from seeking relief in the judicial system whose authority he or she evades, i.e. one cannot flee the country and evade a court order and simultaneously seek the court’s protection.

Justice Virginia Long (now retired from the Supreme Court and Counsel at this firm) set forth the standards for the application of the doctrine in Matsumoto v. Matsumoto, 171 N.J. 11, 120 (2002):

[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceedings; his or her fugitive status must have a significant connection to the issues with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary’s fugitive status; and invocation of the doctrine cannot be an excessive response. Id. at 129.

In the realm of family law, this doctrine poses a unique question to Courts who are required to balance (1) their power to enforce their orders against those who have evaded them, against (2) a fugitive’s parental rights, duty of support and, most importantly, the best interest of the child(ren) whose parent is evading the law.

Recently, the Appellate Division in Matison v. Lisnyansky, held that “[a] father may not obtain the protection of our judicial system to appeal a palimony and custody default judgment while he remains outside of the country avoiding arrest on an outstanding child-support bench warrant.”

There, the defendant father, Mark Lisyansky and plaintiff mother Yvietta Matison, had twin children in 2004. Sometime thereafter, defendant came to the United States and purchased an approximately $1.9 million dollar home in Franklin Lakes, which was substantially renovated. In March 2006, the plaintiff and the parties’ two children then came to the United States and moved into the Franklin Lakes home. Defendant also provided a nanny, interior decorator and secretary. Defendant then returned to Europe to conduct business and plaintiff and the children remained in Franklin Lakes until defendant sold the home. Thereafter, plaintiff and the children moved to Tenafly and defendant continued to provide financial support from abroad.

This arrangement continued until 2012, when defendant stopped supporting the children. Plaintiff obtained a court order for child support (the parties were never married so this was not a divorce proceeding), which stated that, “[a] writ of Ne Exeat [which in Latin means, ‘that he not depart’] shall remain against defendant” and a bond or alternate security was required to be posted. The order also stated that “[t]he Warrant for defendant’s arrest shall remain outstanding until he satisfies his support arrears and complies with the other terms of this Order.”

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The matter was set for trial and defendant discharged his attorney and failed to appear. The Court entered a default against defendant and held a four-day hearing on plaintiff’s claims, ultimately entering a default judgment on May 1, 2013. One-day before the one-year limit set forth in R. 4:50-2, defendant filed a motion to vacate the default judgment (through counsel as he could not appear due to the still outstanding bench warrant), which was denied. Defendant then appealed this Order.

The Appellate Division noted that defendant has been avoiding his court-ordered responsibility to support his two children, while at the same time, he sought to appeal the issues of palimony and custody resulting from the same litigation.

In its opinion, the Appellate Court acknowledged that, as set forth in Matsumoto, “whatever limits the fugitive disentitlement doctrine might impose in other settings would not be applicable in a custody case in which no enforcement issue exists”. Thus, if child custody is a substantial issue the doctrine would not apply. However, the Court concluded here that custody was not an actually an issue. The Appellate Division noted that, curiously, defendant did not raise custody as an issue throughout the litigation, raising it only for the first time in his motion to vacate the default judgment (almost a year after its entry). Further, Defendant did not offer a custodial alternative and the Court recognized that Defendant had been afforded contact with his children through supervised parenting time that was to be arranged between the parties.

Thus, since custody was clearly not an issue in the underlying litigation, the Court declined “to afford [defendant] the protection of the court while he flaunts the court’s authority from overseas.” Should custody reemerge in this matter, same is always modifiable upon a showing of changed circumstances.

Thus, the Court’s ultimate decision in this case balanced the fugitive disentitlement doctrine in favor of defendant’s facetious argument for custody. Though it might seem obvious that a person cannot flee our county and then seek the protections of the Court, that may not always be the case in family law matters. With today’s ever mobile society, it will be interesting to see in what instances, if any, a fugitive’s parental rights and the best interests of the child may outweigh the doctrine of fugitive disentitlement.

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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Regular readers of this blog know that we were the winning attorneys in the Appellate Division in the landmark palimony case, Maeker v. Ross, as we previously blogged on that decision.  As many of you know, the New Jersey Supreme Court granted Certification last year.  Both the Family Law Section of the New Jersey State Bar Association and the New Jersey Chapter of the American Academy of Matrimonial Attorneys, filed amicus briefs in the matter.

The case is scheduled to be argued before New Jersey Supreme Court on May 5, 2014.  Once again, I will be arguing on behalf of Mr. Ross.  In addition to plaintiff’s counsel, representatives for both amici will be arguing, as well.  Stay tuned for the decision.

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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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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.

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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 esolotoff@foxrothschild.com.

Very often, we blog on cases for which we have had no involvement.  Today we get to toot our own horn a little and blog on one of our cases that made new law.  The case is Maeker v. Ross, a reported (precedential) opinion decided on February 4, 2013 by the Appellate Division.  This case may very well represent the death knell of palimony cases as we knew them. 

As we blogged about in the past, in 2010, the Legislature passed an amendment to the Statute of Frauds which required palimony agreements to be in writing and further stated that no action for palimony shall be brought unless the agreement was in writing  The Appellate Division quite definitively interpreted the legislative intent of the amendment to preclude any palimony suits brought after the amendment unless there was a written agreement that complied with the amendment, even if the relationship and alleged promise for support predated the amendment.  The Appellate Division stated:

… The motion judge found that plaintiff’s complaint was not barred by the 2010 amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h) (Amendment), requiring a writing memorializing palimony agreements and independent advice of counsel for each party in advance of executing any such agreement. We reverse and hold that the Amendment is enforcement legislation that addresses under what circumstances
a claimed breach of a palimony agreement may be enforced irrespective of when the purported agreement was entered.
 

In this case, the parties were in a more than 10 year relationship where they resided together and defendant provided for support and other financial benefits for plaintiff.  There was, however, no joint property, joint accounts, and nothing other than insignificant joint financial ties.  The trial judge allowed the claim for palimony to continue based upon an implied promise of support (palimony).

Continue Reading Is Palimony In New Jersey Over As We Knew It?

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.  To check out that post, click here.

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.

Continue Reading RECENT DEVELOPMENTS IN THE EVER-CHANGING NJ LAW ON PALIMONY

On his last day in office in January 2010, Governor Corzine signed a bill amending the Statute of Frauds to require that all palimony contracts had to be in writing.  The bill was a knee jerk reaction by the legislature who were unhappy with a number of more recent court decisions liberally allowing for palimony claims including the ruling in Devaney v. L’Esperance that cohabitation was not necessary to palimony claim.  We have blogged on the new statute in the past.  Since that time, the debate and raged, and litigation has ensued, over whether the law applied to pending palimony claims.  In fact, courts were split on whether pending claims should continue or whether they should be dismissed.  The question was answered by the Appellate Division on April 21, 2011, in the case of Botis v. Estate of Kudrick et al when the court definitively held that the statute was to only be applied prospectively.

In this case, the parties met in high school in the 1950s and married other people, but commenced a relationship in the 1970s after the end of their respective marriages.  They eventually moved in together and had a marriage like relationship as alleged by the plaintiff.  She even claims that she invested the proceeds of the sale of her home into furnishing the defendant’s newly expanded home.  They later jointly purchased a home together in Wareton which was later transferred only into the defendant’s name, allegedly for tax purposes.  Plaintiff claimed that because of his superior finances, defendant promised to take care of her financially in the lifestyle they had shared together in the event of his death.  However, when the defendant became stricken with cancer, plaintiff learned that she was not provided for in his will.  As such, she sought palimony and transfer of title of the two homes to her.  The litigation in which the man’s estate was the defendant, was characterized as "entrenched and highly adversarial" on all issues.

Continue Reading Palimony Claims Still Alive Says Appellate DIvision – Statute Only Applies Prospectively

In January 2010, on his way out of office, Governor Corzine signed a bill requiring palimony agreements to be in writing.  We previously blogged on the enactment of that law.  The question that arose is whether the bill was prospective in nature or whether it applied retroactively.  At a seminar I attended in May, I heard a judge say that the policy at that time was to only allow cases to proceed if they had been filed before the enactment of the statute.  Conversely, even if the palimony promise had been made pre-statute, if the law suit was not filed, it would be dismissed.

As noted on the front page of the July 19, 2010 New Jersey Law Journal, there are several motions now pending in the Appellate Division, including one filed by this firm, addressing whether there should be retroactive application of the statute.  A judge in Atlantic County has held that the statute should be retroactively applied.  Judges in Monmouth and Somerset Counties came to the opposite conclusion.

When the issue is resolved one way or another, we will update this blog.

In October of 2008, Jennifer W. Milner blogged on palimony and pending legislation (S-2091), which, if enacted, would overturn the palimony decisions she discussed by requiring that any such contract to support one for life must be in writing and signed by the person making the promise. More specifically, that a promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of the relationship or after its termination, is not binding unless it is in writing and signed. The editor of the blog, Eric S. Solotoff, promised that we would updated the blog accordingly. Well, on January 15, 2010, just a few short days before Jon Corzine’s last day as Governor, he signed legislation (S-2091) which prohibits the enforcement of palimony agreements that have not been put in writing. The new law provides that a promise of palimony is not binding unless it is in writing. It also requires both parties to receive independent advice of legal counsel before the agreement can become binding. This law closes a loophole in state law that has allowed palimony claims even when unmarried couples never lived together or did not put their promises of support in writing. The new law takes effect immediately.

Women will no doubt be hurt by this new law.  There remains questions as to what the law means to both pending palimony cases as well as people who have in been relationships that would have merited palimony but for the new law.  We would expect that there will be more to come on this.