Palimony-in-Writing Bill Passed by Senate Judiciary Committee

By Michael Booth
New Jersey Law Journal

The Senate Judiciary Committee on Monday approved bipartisan-sponsored legislation that would require all palimony agreements to be in writing and signed in order to be enforceable.

The bill, S-2091 , amends N.J.S.A. 25:1-5, which already requires that prenuptial agreements be put into writing, to include palimony agreements. It adds a new paragraph “h” stating: “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” shall be in writing and signed by the party to be charged.

Litigation of palimony claims is heavily fact-intensive and often acrimonious, since courts are typically dealing with nonexplicit promises of support between unmarried couples. The difficulty was compounded last year by the ruling in Devaney v. L’Esperance , 195 N.J. Super. 247 (App. Div. 2008), which held that cohabitation is not a necessary element of the marital-type relationship needed to be proved.

Claims that are asserted after the death of one of the parties are even harder to prove and are often complicated by contests raised by other claimants to the decedent’s estate, such as in In re Estate of Roccamonte , 174 N.J. 381 (2002), which held enforceable an implied promise of support for life.

The bill would modify both of those rulings as well as Kozlowski v. Kozlowski , 80 N.J. 378 (1978), the case that first recognized the availability of palimony in New Jersey.

“This will save a lot of work for the judiciary in trying to determine whether these promises are enforceable,” said one of the sponsors, Sen. Nicholas Scutari, D-Union. The other sponsor is Sen. Gerald Cardinale, R-Bergen, the committee’s ranking Republican.

On the advice of Sen. Robert Smith, D-Middlesex, Scutari agreed to include language that would allow courts to void an agreement if the parties were not told that they had the right to seek independent counsel before signing. If the parties did consult counsel, the agreement would be enforceable.

The bill passed the committee 9-1, with only Sen. Loretta Weinberg, D-Bergen, voting no. She said she preferred that the bill include language requiring cohabitation.

The bill drew no public testimony and passed the committee without opposition. It now goes to the full Senate.