Previously, I wrote about the status of palimony in New Jersey, detailing the recent inclusion of palimony claims in the amended Statute of Frauds. The Statute of Frauds requires certain types of contracts to be evidenced by a signed writing in order to be enforceable. Now, contrary to the developed case law on the matter, individuals in a non-marital, but dependent, living arrangement will need to produce such a writing in order to sustain a claim for financial support, or palimony.

Since passage of the amended statute, there have been questions surrounding the application of the law, as the new requirements clearly put individuals already engaged in such relationships at a real disadvantage both in their ability to obtain support or even to now bargain for the terms of a written memorialization of the prior agreement (needed to satisfy the statute and preserve a right to support or other relief).

In several significant cases which followed enactment of the amended statute, the Courts addressed the application of the writing requirement, in both prospective and retroactive contexts. In the first of these, Botis v. Estate of Kudrick, 421 N.J. Super. 107 (App. Div. 2011), the plaintiff filed a claim for palimony approximately one year prior to the amendment. Though the case was pending at the time of the amendment, the decedent’s estate opposed the palimony application, citing the lack of a writing, as now required, as justification to dismiss the claim. The Appellate Division, upholding the trial court’s determination that the statute applied only prospectively, found that though the amended language of the statute made it effective immediately, the Legislature did not specify its application retroactively. Absent such specific instruction or intent by the Legislature, the Court held that retroactive application would be inappropriate.

With Botis, Court clarified that cases filed prior to the effective date of the amendment would be able to proceed under the established palimony case law and without need for a written agreement.

In the Appellate Division’s most recent decision, Maeker v. Ross, 430 N.J. Super. 79 (App. Div. 2013), plaintiff relied on an oral promise of support made prior to the amendment to the statute, but brought her claim after enactment of the amendment. Already invested in the relationship for many years, and without a written agreement, plaintiff argued that the prospective application should apply only to agreements entered into after enactment of the amendment. That is, for parties newly undertaking such non-marital, but marriage-like, relationships.

The Appellate Division rejected plaintiff’s arguments, citing the “clear and unambiguous” language of the statute requiring claims to be supported by a writing. Further, the Court clarified that plaintiff’s claim arose not when the parties made their alleged promise (which in this instance would pre-date the amendment) but at the time of the alleged breach (after the amendment). In a surprising extension of its ruling, the Court also invalidated plaintiff’s additional claims for relief based on equitable remedies, such as quasi-contract, quantum meruit, joint venture and partial performance.

The Maeker case is remarkable for its affect on those individuals in marriage-like relationships of any extended period of time, for 10, 20, even 30 years. The decision simply wipes away their ability to seek support after relying on an oral promise and conduct for years, if not decades.

Most unbelievable is the Court’s assumption that individuals already engaged in these types of relationships are in any kind of a position to cure their deficiency by entering into a writing now. In claiming that such parties chose not to seek a writing once the amendment became effective ignores the real disparity in bargaining power between parties at such a late date.  The majority of individuals who would seek palimony are dependent on the other party and have generally sacrificed opportunities to further a career or earn in reliance on a prior agreement to be financially provided for. Given these concerns, it would seem that there should be heightened skepticism of such a dependent individual’s ability to obtain a “fair” written agreement under such circumstances.

The Court’s additional preclusion of alternative equitable claims is likewise troubling. It is no secret that contributions to the relationship by the dependent party are generally non-financial in nature; specifically the kind of contribution the Court excluded as a basis for a claim under these theories.

While Maeker awaits certification for review by the Supreme Court, parties and lawyers are left with few options for relief absent a writing memorializing the agreement for support. Potential litigants should bear in mind that equitable claims, though limited, are still viable in select circumstances. Those seeking relief should carefully consider these alternative claims as the best and only options available until there is a change in case law or legislation.

The End of Palimony?


Palimony is financial support paid from one unmarried cohabitant to another. It was first recognized as a cause of action in New Jersey in 1979, when our  state Supreme Court decided the seminal case of Kozlowski v. Kazlowski, 80 N.J. 378 (1979). In that case, and until recently, the courts have interpreted palimony to include a wide variety of cohabitation agreements to provide future support and division of property as valid and enforceable contracts. The courts have also been willing to find enforceable agreements whether oral or memorialized in writing.

The development of palimony in New Jersey following Kozlowski further broadened the scope of such agreements. In 2002, the court decided In the Matter of the Estate of Roccamonte, 174 N.J. 381 (2002). In that case, the court found that, “marital type relationships between unmarried persons” may reasonably include an enforceable “promise by one to support another.” The court noted that such a promise would sustain a valid claim for palimony, whether express or implied, because “parties entering this type of relationship usually do not record their understanding in specific legalese.” Continue reading “The End of Palimony?”