Friends With Benefits – What is Palimony?

What is Palimony in NJ?

Palimony is a claim for support between parties who are not married. The New Jersey Supreme Court first recognized a claim for palimony in 1979. Nevertheless, in 2010, New Jersey enacted a new statute (N.J.S.A. 25:1-5(h)), which bars a claim for palimony unless such an agreement is made in writing and upon independent advice of counsel to both parties, raising very serious consequences for non-married couples.

The Law Before 2010

Prior to 2010, non-married parties could bring a claim for palimony on the basis that an express or implied agreement of care and support existed between the parties. The courts recognized that such agreements were generally not in writing and may not have been expressly stated. The only bar to relief was if the promise of care and support was based on a relationship proscribed by law, such as for sexual services, or based on a promise to marry, which has been banned as a cause of action in New Jersey.

Since 1979, New Jersey courts granted and upheld palimony awards in a variety of diverse situations, including where the payor was still married, where the parties did not cohabitate, against an estate of a decedent, and even for temporary relief pending the resolution of the suit. In essence, New Jersey courts had demonstrated a tacit recognition that they were going to be as flexible as needed to ensure the principles of equity and justice were achieved, without being constrained by any bright line rule.

The Legislature’s Limitation of NJ Palimony Claims

With the enactment of N.J.S.A. 25:1-5(h) in 2010, the New Jersey legislature abrogated this compendium of palimony cases and limited palimony only to cases in which the parties had a written agreement made with the independent advice of counsel. In the first reported case following the enactment of the statute, Botis v. Estate of Kudrick, the Court held that the statute only applied prospectively, because there was no indication that the legislature intended a retroactive application and because the parties could not have reasonably anticipated the enactment of the statute.

In other words, Botis seemingly stood for the principle that the statute would only apply to palimony cases in which the promise of care and support arose after the enactment of the statute. Nevertheless, two subsequent reported cases distinguished Botis, and held that the statute applied retroactively. Botis was easy to distinguish because there, the plaintiff filed her case prior to the enactment of the statute, even though the case was still pending on the date the statute took effect, and so compliance with the statute was impossible.

In the second and most recent case, Maeker v. Ross, the Court put to rest any remaining uncertainty, and explained that since palimony actions are based on principles of contract, a person’s cause of action does not accrue until such time as the defendant is alleged to have breached the agreement, and not at the time the promise of case and support is made. In other words, the Court’s holding in Maeker made clear that an action for palimony will not be upheld unless the requirements of the statute are met. The Maeker Court also rejected the plaintiff’s equitable claims, though arguably did not entirely foreclose the possibility that such equitable claims could arise under certain circumstances.

What Remedies are Still Available?

With the enactment of N.J.S.A. 25:1-5(h), non-married couples who do not comply with the statute are no longer entitled to support in the event of separation. As a result, the statute has the potential of leading to wildly inequitable results, especially in cases of long-term relationships that involve financial dependence. Fortunately, even if obtaining support might no longer be possible absent an express written agreement, certain equitable theories might allow a party to argue that property acquired by either or both of the parties should be equitably divided between them.

For more on palimony in NJ

If you are in a long-term non-marital relationship or are in the midst of ending a non-marital relationship, you should contact an experienced New Jersey divorce lawyer to learn your rights. Steven M. Cytryn, Esq. welcomes the opportunity to meet with you and to advise you of how you can best protect your rights. Contact Steven M. Cytryn, Esq. today at (732) 214-1103.

Steven M. Cytryn
About the Author: Steven Cytryn
Steven M. Cytryn is the Managing Member of The Law Office of Steven M. Cytryn, LLC, and primarily focuses his practice on divorce and family law matters.