Court holds that cohabitation is not essential for an award
By Edward S. Snyder, 193 N.J.L.J.652
The law of palimony has evolved and expanded over the last three decades and the Supreme Court of New Jersey has been active in defining its parameters. During the 2007-08 term the court once again delved into this area of family law by deciding Devaney v. L’Esperance, 195 N.J. 247 (2008). holding that cohabitation is not essential for an award of palimony, however declaring that it is just one of several factors to be considered by a trial court
Genesis of the Palimony Claim in New Jersey
Palimony is essentially “alimony” where the parties were never married. The true definition of palimony, however, can be described “in general terms [a]s a claim for support between unmarried persons.” Devaney, supra, 195 N.J. 247 at 16.
The term “palimony” was actually coined in the case of Marvin v. Marvin, 18 Cal. 3d 660 (1976). Michelle Marvin claimed that the late actor Lee Marvin promised to support her for the rest of her life despite the fact that Lee was married at the time the parties began living together. The California Supreme Court noted that social norms had changed as more adults were living together without entering into marriage. Keeping the evolving social mores of its citizens in mind, the Marvin court held that “nonmarital partners may lawfully contract concerning the ownership of property acquired during the relationship [and] equity will protect the interests of each in such property.” Accordingly, the court said that express agreements will be enforced unless they rest on an unlawful meretricious consideration and in the absence of an express agreement, the courts may look to a variety of other remedies in order to protect the parties’ lawful expectations. The Marvin decision opened the floodgates for palimony suits against celebrities such as Liberace, Rock Hudson, Martina Navritalova and Bill Maher, to name a few, and decisions of the highest courts of other states, including New Jersey
In 1979, the New Jersey Supreme Court decided Kozlowski v. Kozlowski, 80 N.J. 378 (1979). adopting the framework utilized in Marvin. Prior to Kozlowski, contracts (such as a promise to support a person for the rest of their life) made between unmarried parties in a relationship, were held not valid and considered meretricious. The Kozlowski court noted that there had been a paradigm shift in the moral compass of the people of this state, that long-term relationships between unmarried people were more common and concluded that “the judicial barriers that may stand in the way of a policy based upon the fulfillment of the reasonable expectations of the parties to a nonmarital relationship should be removed.” The court held that contracts made between parties in nonmarital relationships should be upheld as such contracts can no longer be thought to be solely based on meretricious services, and remanded back to the trial court instructing that the plaintiff be awarded “a one-time lump sum judgment in an amount predicated upon the present value of the reasonable future support defendant promised to provide, to be computed by reference to her life expectancy.”
in 1982, in Crowe v. DeGioia, 90 N.J. 126 (1982), the court further expanded palimony, holding that a plaintiff could be awarded pendente lite relief if “traditional equitable principles” demanded. In Crowe, the justices looked to the status of the citizens of our state and determined that “[i]ncreasing numbers of unmarried couples live together. The number of households comprised of unmarried partners frose from approximately 12,000 in 1960 to more than 1.5 million in 1980.” The court stated that equitable interests demanded that the plaintiff, who did not work and maintained the household for the majority of the parties’ 20-year relationship, would be substantially harmed if she did not receive support pending litigation and that the defendant, who was well off, would not be harmed in having to pay interim support.
It took 20 years for the court to hear another significant palimony case. In re Estate of Roccamonte, 174 N.J. 381, 399 (2002). In Roccamonte, the longterm girlfriend sued the estate of her boyfriend for enforcement of his promise to support her for the rest of her life. In this case, the court made clear that the fundamental principle of New Jersey’s palimony law is that “the formation of a marital-type relationship between unmarried persons may, legitimately and enforceable, rest upon a promise to support the other.”
In determining that a decedent’s estate may be liable for a promise made prior to his death to a nonmarital partner, the court “recognized that unmarried adult partners, even those who may be married to others, have the right to choose to cohabit together in a marital-like relationship, and that if one of those partners is induced to do so by a promise of support given her by the other, that promise will be enforced by the court.” Roccamonte, supra, 174 N.J. at 389. Moreover, “if such a promise of support for the promisee’s lifetime is found to have been made, without any further specification or elaboration of its terms, and that promise is broken, the court will construe and enforce it by awarding the promisee ‘a one-time lump sum … in an amount predicated upon the present value of the reasonable future support defendant promised to provide, to be computed by reference to … [the promisee’s] life expectancy…” Thus the award Kozlowski, a one-time lump sum payment based on the plaintiff’s life expectancy, has become the standard when it is determined that a promise of lifetime support is made and that promise is broken.
In Devaney, the trial court dealt with the following facts: the plaintiff met the defendant when she was 23 years of age and he was 51. Although the defendant remained married during the 20-year relationship, he purchased a condominium for the plaintiff, paid for many of her expenses, and put her through college and graduate school. However, during the seven years in which the plaintiff resided in the condominium, the defendant spent a total of six or seven nights there. Notwithstanding that the defendant promised to marry the plaintiff, and he treated her in a very special way, he never divorced his wife and didn’t hold the plaintiff out as his significant other to his family and friends. Apparently this was nothing more than an extramarital relationship for the defendant, who eventually ended the affair and removed the plaintiff from the condominium.
Is Cohabitation Necessary?
Notwithstanding that the Appellate Division held in several cases that cohabitation was a requirement for a successful palimony claim, this issue continued to be widely discussed by members of the matrimonial bar. The Justices, in Devaney, put this matter to rest once and for all by holding that “[i]t is the promise to support, expressed or implied, coupled with a marital-type relationship, [and not the fact that the parties ever lived together] that are the indispensable elements to support a valid claim for palimony.” The court said that cohabitation is but one of the relevant factors in the analysis of whether a marital-type relationship exists, which is essential to support a cause of action for palimony. The court went on to observe, however, that most successful palimony cases will include cohabitation, but a lack of cohabitation is not a bar to palimony-type relief.
Despite their ruling, the court found that the plaintiff had not sustained her claim for palimony and essentially affirmed the judgment of the Appellate Division which upheld the trial court’s rejection of the claim. The trial court found that the parties did not engage in a “marital-type relationship.” They did not cohabit, or spend significant periods of time together. They did not demonstrate an intention to commingle property. Moreover, “although defendant did visit with plaintiff’s family, the parties did not hold themselves out to the public as husband and wife and plaintiff did not attend social gatherings with defendant’s friends, family, or colleagues.” Lastly, the trial court found that the plaintiff did not contribute to the relationship as a wife would contribute to a marriage and the sum total of the parties’ relationship was more akin to that of a dating relationship that that of a married couple.
The court went on to contemplate the circumstances in which a valid cause of action for palimony may accrue in the absence of cohabitation, such as couples who are separated due to employment, military or educational opportunities. Accordingly, the court held that “in addressing a cause of action for palimony, the trial judge should consider the entirety of the relationship and, if a marital-type relationship is otherwise proven, it should not be rejected solely because cohabitation is not present.”
There were two concurrences to the majority opinion written by Justice Wallace. Justice Long cautioned that the requirement of a “marital-type relationship” should only be applied to an implied contract case, and is not applicable where an express contract exists. Justice Long asserted that “under our established case law, like every other person, a participant in a non-marital romantic relationship may recover in contract if she can show that she incurred a detrminent in reliance on an express promise of support, that that promise was breached, and that she was damaged thereby.” Thus, “in a case in which a plaintiff in fact proves an express promise of lifetime support, and that she provided the agree upon consideration, she should not be barred from recovery based on the absence of a marital-type relationship.” Accordingly, the consideration, as Justice Long sees it, in exchange for a promise to be supported for life does not have to be the performance of the role of a spouse — it can be for any legal consideration the parties agree upon. Justice Long reminds the majority that “the right to support in a palimony action ‘does not derive from the relationship itself but rather is a right created by contract.'” Id. at 35. Citing Roccamonte, supra, 174 N.J. at 389. Justice Revera-Soto concurred only in the result affirming the lower court in rejecting the plaintiff’s palimony claim, but he does not agree with the majorities’ conclusion, believing that cohabitation is necessary “requirement” and condition precedent to form a valid cause of action for palimony. Justice Rivera-Soto examines case law nationwide and concludes that “nowhere–save for those limited instances where a claim for palimony is based on a writing confirming an agreement of support — can a palimony claim be sustained absent proof of cohabitation” He notes that “[e]ven California — the birthplace of the Marvin/palimony case of action — requires cohabitation as a prerequisite to recovery on a palimony claim.” Justice Rivera-Soto states that in his view, palimony claims “must be subjected to harsh and unremitting scrutiny … [because if not] every dating relationship would have the potential for giving rise to such claims.”). He sees the majority opinion as a broadening of a claimant’s ability to recover an award of palimony and states that the rejection of the requirement of cohabitation is “unexplained and without basis.”
The majority opinion is clear, however, in that cohabitation is not a necessity to a successful claim for palimony. It must be noted that although the court “blazed the way” for a future palimony case in which the parties do not live together, in the case at bar, the lack of cohabitation was just one element that the court considered in denying the plaintiff’s claim for palimony and affirming the trial court’s decision.