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

Most people have heard or had experience with an attorney who’s behaviors were, one could say, questionable.  What most have not considered is what implications an attorney’s unethical or questionable behaviors could have on them.

The New Jersey Supreme Court has provided some guidance on this very topic in the recent decision of Brundage v. Estate of Carl V. Carambio.  Carol Brundage hired her attorney to represent her in her claim for palimony against the estate of her deceased paramour.  She probably had very little knowledge of what other matters her attorney was handling in his office.  Little did she know that her attorney, just months before beginning his representation of Carol Brundage, represented another woman, Jeanette Levine, in a different county, but also for a claim of palimony.  Carol Brundage also is likely not to have known that in Ms. Levine’s case, the trial court determined that she would not succeed on her claim for palimony because cohabitation was an essentail element for success on a palimony claim, and those parties had not lived together.  Her attorney filed an appeal raising the question of whether cohabitation is an indispensible element of a cause of action for palimony.  (Click here for  Eric Solotoff’s blog entry above on the recent Supreme Court decision in that regard).  Carol Brundage never lived with her now deceased paramour.

Her attorney went on to represent Carol Brundage with his appeal on the Levine matter pending. The Estate filed an application to dismiss Ms. Brundage’s Complaint claiming that cohabitation was an essential element.  In his representation of Ms. Brundage, her attorney convinced the trial court that cohabitation was not essential and thus the Estate’s application was denied.  In his argument, her attorney failed to mention his experience with the trial court in Ms. Levine’s case nor did he mention that the issue was pending on appeal.

The Estate then filed a motion for leave to appeal with the Appellate Division.  In opposing that motion, the attorney did not disclose the contrary conclusion reached by the trial court in Ms. Levine’s matter or the fact that an appeal was pending.  The Appellate Division denied the Estate’s motion and eventually the parties’ settled.

Continue Reading Can an Attorney’s Ethical Violation Be a Client’s Problem As Well?

Palimony is claim made, typically, by a unmarried cohabitant, seeking money because the other party made a promise to support her or him for life.  The promise can either be express or implied by the parties’ conduct.  If successful in proving the claim, the recipient is entitled to a lump sum equal to the present value of being supported for life based upon the recipient’s life expectancy. 

On June 17, 2008, the long awaited opinion from the New Jersey Supreme Court in the case of Devaney v. L’Esperance was released. 

After a number of of Appellate Division cases in the last several years, including this case, held that a bright line for palimony cases was cohabitation, the issue was ripe for review by the New Jersey Supreme Court, especially after a 2007 decision by Judge Hayden, in Federal Court, questioned whether the New Jersey Supreme Court would require cohabitation. 

The facts in Devaney  are as follows.   In 1983, Helen Devaney, then twenty-three years old, began working for Francis L’Esperance, Jr. (then 51 and  married to his current wife for approximately twenty years) as a receptionist for his ophthalmology  practice.   The parties began
a twenty-year long intimate relationship. During that time, L’Esperance continued to live with his wife and never cohabited with Devaney, though for a time they vacationed and had dinner together several time per week. L’Esperance also promised to divorce his wife, marry Devaney, and have a child with her. However, not happy with L’Esperance’s failure to keep his promise, Devaney moved to Connecticut and then to Seattle, Washington. She moved back to New Jersey to
a condominium leased by L’Esperance because he again promised to leave his wife, marry her, and have a child with her. It was not disputed that  L’Esperance provided financial support to Devaney, including purchasing the condominium unit; paying for her undergraduate and graduate education , purchasing a car for her use; and provide her with money for various other expenses. However, L’Esperance’s promise to divorce his wife and marry Devaney was unfulfilled. The parties also decided to have the baby, but Devaney learned that she would have difficulty conceiving., L’Esperance then decided he did not want another child. The relationship eventually ended, Devaney began a relationship with another man, and L’Esperance evicted Devaney from the condominium.

Both the trial court and Appellate Division found that the parties did not have a marital type relationship but rather, only had a "dating relationship."  Ultimately, the Supreme Court agreed and affirmed the denial of palimony. 

However, they also held that though cohabitation is one of the many factors a trial judge should consider in determining whether a plaintiff has proven a marital-type relationship to support a claim for palimony, it is not essential.  The Supreme Court further held that in these highly personalized cases, it is conceivable that a plaintiff, even in the absence of cohabitation, may establish a marital-type relationship and prove a claim for palimony.