The Supreme Court invalidated the statutory provision requiring palimony agreements be entered into with advice of counsel as unconstitutional. The New Jersey State Bar Association (NJSBA) participated as amicus curiae in the matter of Moynihan v. Lynch, arguing that palimony agreements should be enforced despite the lack of attorney review. NJSBA’s Family Law Section Chair Robin Bogan argued the matter on behalf of the association. Bogan, Brian M. Schwartz and Brian G. Paul authored the amicus brief.
“In light of the nature and importance of the right of willing parties to enter palimony agreements without the burden of attorney participation, we conclude that the imposition of an attorney-review requirement is an arbitrary government restriction that contravenes Moynihan’s substantive due process rights,” Justice Barry Albin wrote in a unanimous opinion. “We are therefore constrained to strike down the attorney-review requirement in N.J.S.A. 25:1-5(h). Palimony agreements must still be in writing and signed, if not by both parties, at least by the party against whom the agreement is to be enforced – just like all agreements enumerated in the Statute of Frauds. See N.J.S.A. 25:1-5.”
The case emanates from a long-term dating relationship that resulted in the parties entering into a handwritten agreement that was signed before a notary promising various transactions in the event of a breakup. The couple eventually broke up and the plaintiff sought enforcement of the agreement. The defendant admitted he did not intend to be bound by the agreement, but instead told the plaintiff that he was a “man of his word” encouraging her to sign the agreement. In his pleadings, he argued the agreement was unenforceable because neither party sought independent counsel before signing the agreement.
The NJSBA urged the Supreme Court to invalidate the attorney review mandate as unconstitutional as a violation of the Contracts Clause, Equal Protections Clause and Guarantees. It argued unmarried couples in a dating relationship who enter into contracts are treated differently because they are the only people who are required to seek attorney review. It further signaled a concern that those who often benefit from the palimony agreement are the ones who are not in the position financially to retain an attorney to review the agreement.
“While the NJSBA believes it is prudent for anyone entering into a contract or agreement to consult with independent counsel, requiring such consultation in order for the agreement to be valid is contrary to fundamental notions of fairness, equal application of the laws and access to justice for all persons, especially financially or otherwise disadvantaged litigants,” the NJSBA said in its brief.
The Court held the clause unconstitutional on different grounds, but similarly noted the imbalance in these relationships that could create impediments to attorney review. “We cannot ignore the potential disparate impact of the statute – the reality that a financially dependent partner who is a party to a palimony agreement may be unable to afford counsel. Nor can we ignore the irony that, under N.J.S.A. 25:105(h), the parties cannot enter a palimony agreement without counsel, but can stand in a courtroom and argue for the enforcement of such an agreement without counsel,” the Supreme Court said in its opinion.
The NJSBA further urged the Court to permit the application of equitable defenses of promissory estoppel and partial performance to prevent frauds from being committed in cases such as this. The Supreme Court did not reach this argument, finding there was no oral agreement before 2010 when the written requirement became a statutory mandate.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.