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New assault on palimony launched by legislature

  • 1.  New assault on palimony launched by legislature

    Posted 11-06-2014 12:31 PM
    As pointed out by Eric Solotoff on his blog -- on October 27, 2014, Senators Scutari and Cardinale introduced S2553 which made clear that the 2010 statute was intended to apply retroactively.  The synopsis of the proposed revision to statute is as follows:

    Makes retroactive current law requiring �palimony�  agreements to be in writing; provides that pre-existing palimony agreements are unenforceable unless put into writing within one year of enactment of this bill.

    The statement after the language of the proposed statute is even more clear:

    P.L.2009, c.311, enacted January 18, 2010, required that any �palimony� agreement must be in writing to be enforceable. The enactment amended R.S.25:1-5 to provide that a promise by one party to a non-marital personal relationship to provide support or other consideration to the other party, either during the course of such relationship or after its termination, is not binding unless it is in writing and was made with the independent advice of counsel for both parties.

    In Maeker v. Ross, http://scholar.google.com/scholar_case?case=8801444556423756506 , decided September 25, 33 2014, the New Jersey Supreme Court held that the Legislature did not intend the enactment to retroactively apply to palimony agreements made prior to the effective date of the enactment, and that such pre-existing palimony agreements are enforceable even if they were never put into writing. This bill would address the court�s decision by clarifying that P.L.2009, c.311 is intended to be retroactive. This bill provides that palimony agreements made prior to January 18, 2010, the effective date of P.L.2009, c.311, would be enforceable only if they are brought into compliance with P.L.2009,c.311 within one year of the effective date of this bill.


    There wasn't nearly enough noise made when the original "anti-palimony" statute was pushed through.  Hopefully, we'll all be on notice now and can oppose this "revision" to it.  While I agree that palimony had gone too far (removing the requirement of cohabitation, etc), this is throwing out the baby with the bathwater and is going to result in some serious injustices.  

    Of course, the argument that the SCT punted on (whether partial performance brings palimony actions outside the statute of frauds in the first place) may render any amendment on the issue irrelevant, I for one wouldn't want to bank on the court getting it right when they finally get to it at all. 

    Perhaps someone (FLS?) should propose a statute that addresses palimony and confines it to the cases where it's application would be just (taking into account length of cohabitation, level of economic dependence that needs to be shown, etc etc) .... something to "fix" the excesses the SCT decisions caused that have served as the motivation for the legislative action, but would still leave the door open (retroactively and prospectively) when appropriate?

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