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
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.
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.
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.