Recent Developments Concerning Palimony Claims
By Barry L. Kaufman, Esq., Marianne Quinn, Esq. and Kit E. Calligaro, Esq.
Effective in January 2010, a promise by one party to a relationship to provide support for the other party to the relationship, either during or after termination of the relationship, is not binding unless it is in writing and signed by the party making the promise.
Specifically, the enactment of N.J.S.A. 25:1-5 (h) immediately amended the Statute of Frauds to include a provision relating to personal relationships:
- N.J.S.A. 25:1-5. Promises or agreements not binding unless in writing. No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:
- …..h. A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advise of counsel for both parties.
Prior to the recent enactment of legislation requiring a writing for the promise of support to be enforceable, the court addressed this issue in Kozlowski v. Kozlowski, 164 N.J. Super. 163 (Ch. Div. 1978), aff’d 80 N.J. 378 (1979). Kozlowski involved claims for a share of accumulated assets, payment for services rendered and for future support. The court analyzed the claims under theories of partnership law, joint venture, equitable theories of quasi contract, quantum meriut and contract law. The request for distribution of accumulated assets under any theory was denied. Kozwlowski, at 171-2.
The court determined that an arrangement for future support by an adult non married partner which is not explicitly based upon a promise to marry or on sexual services may be enforceable under theories of 1) quasi-contract (a remedy to prevent unjust enrichment) or 2) a contract – either express or implied. The court determined that the plaintiff’s claim for services was satisfied by the daily support and benefits provided, but awarded the plaintiff damages for future support based upon the present value of reasonable support computed by reference to life expectancy tables. Id. at 178. The Supreme Court affirmed after reiterating that the award was not based upon alimony or equitable distribution principles.
Although the legislation appears to abrogate Kozlowski because of the lack of a writing, it is anticipated that there will be significant litigation over the next several years in cases where a long term relationship existed prior to the enactment of the legislation and a party was verbally promised support.
It is reasonably certain that over time, our courts will fashion an equitable remedy for cases when all of the necessary elements to sustain a palimony claim (cohabitation for a significant period of time; marriage-like relationship; during period of cohabitation, defendant promised plaintiff he/she would her/him for life; and that promise was made in exchange for valid consideration) were present prior to the enactment of the new legislation, but without a writing memorializing the promise.
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