I have written a great deal on the changing state of New Jersey palimony law, both on this blog and in outside publications. In the past few weeks, there have been two additional major occurrences that will help decide the final outcome of New Jersey palimony law.
The first is that, as expected, the Maeker v. Ross matter has been granted Certification before the Supreme Court of New Jersey. This will help resolve, once and for all, whether the palimony statute should be applied retroactively or prospectively. The appellate court decided that retroactive application was suitable under the Statute of Fraud Amendments. Now it is time for the state’s Supreme Court to weigh in.
Another, seemingly out of left field case, is the recent published Superior Court decision in Joiner-Orman v. Orman. The Judge in that case determined that a Statute of Frauds exception may exist for “partial performance.”
It would appear, given these latest developments, that palimony law, which was significantly modified for the first time in decades following the 2010 Amendments, continues to be a major wildcard in New Jersey family law. And rumors of the death of palimony in New Jersey appear to be greatly exaggerated.
As a practical matter for family law attorneys, it is quite difficult to counsel clients on how to proceed and whether or not they have a case. There was a lot of backlash to the palimony amendments, but these cases may take the teeth out of the amendments absent further modifications by the legislature.
To learn more about the Orman, case, Charles Toutant of the New Jersey Law Journal wrote a very good article about the case in today’s law journal. (And I’m not just praising the article because I was quoted in the piece).
As for now, it’s a waiting game to see what the final incarnation of New Jersey palimony law will be.
From the time palimony was first recognized in New Jersey more than thirty (30) years ago, there had never been a requirement that the Palimony Agreement be in writing. For years, Court’s would look to the facts of the case, corroborating evidence, testimony, and other factors to determine the efficacy of palimony. That all changed when former Governor Corzine, at the end of his term in 2010, signed a bill that would significantly change the nature of palimony in New Jersey.
The law change modified the statutes of frauds in New Jersey, and required that Palimony Agreements be written to be enforceable by the Courts. The only question that remained was whether this new requirement would be applied retroactively or prospectively.
Over the following months, trial courts were split as to this issue. The issue was finally settled (for now), by the recent appellate division case Botis v. Estate of Gary G. Kudrick (et al). (App Div. 2011). In a unanimous decision, the Botis Court held that the modified palimony statute would be applied prospectively, and therefore not retroactively. Accordingly, palimony agreements made prior to the change in law need not be in writing to be enforceable.
The Botis Case
The Botis Case involved a long-term cohabitation, that never resulted in marriage. The facts of the case are fairly typical of most palimony claims (except for the fact that one of the parties is now deceased), with the Plaintiff seeking support claiming the other party promised to “always take care of” her, and that the parties enjoyed a “marital-type relationship.” The big issue of global importance in the case was, as noted above, whether the palimony law would be applied retroactively or prospectively.
Retroactive Palimony in New Jersey: My Two Cents
For me, I have never really understood why there was much of a controversy to this issue in the first place. Wouldn’t it be fundamentally unfair to apply the new written palimony requirement retroactively? To rule otherwise, would be to require palimony parties to have entered into a written agreement prior to the law requiring same. If there was no writing requirement then in effect, then how could a party seeking palimony be blamed for not seeking a written form of Agreement?
The Botis Case recognized this issue, and also pointed to some other reasons why the new law should be applied prospectively rather than retroactively. Among them are:
- The language in the law hinted at a prospective legislative intent;
- Prospective applications of laws are generally favored by New Jersey Courts;
- The palimony rights were “well established rights”
- One of the parties to the case was dead, and therefore could not have complied with the palimony law modification, even if he had wanted to.
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