Palimony
- Beware: If two individuals live and act as a married couple (even though they are not married),
when they break up, the Court may distribute the personal assets of one between the two of them.
In Mitchell V. Oksienik, the Appellate Division held that:
Although distribution of individually owned assets is improper under the
rubric of "equitable distribution" where unmarried cohabitating
parties are involved, such persons who have engaged in a joint
venture to purchase property in which they reside, are entitled
to seek a partition, and the Family Part is the appropriate forum
for the resolution of such issues.
As joint venturers, the parties are entitled to seek a
partition of their property when their joint enterprise comes to an end,
irrespective of how title is formally held.
Among the remedies available on partition -- where other
modes or relief are not practical -- is a forced sale of the
property and division of the net proceeds between the two parties.
The full decision is available at:
Mitchell V. Oksienik, __ N.J. Super. __
(App. Div. 2005) [Docket No. A-1775-03T1; Decided September 2, 2005]
- In his
Blog, Charles C. Abut, Esq. comments on
L'Esperance, Jr. v. Devaney as follows:
Summary judgment for the plaintiff condominium owner in a Law Division action to eject the defendant
ex-girlfriend and denial of her request to transfer the matter to the Family Part, where her palimony
action was pending, affirmed. The parties had a long-term romantic relationship. He was her boss and
was married to someone else, but had "essentially supported" her since 1983 and had repeatedly promised
her that he would get divorced, marry her, and father her child. On the "narrow question" presented, the
Law Division correctly concluded that there was not "a scintilla of evidence" that he promised her the
condominium. In affirming, the Court discusses Kozlowski, Crowe and
Roccamonte, disagreeing that there
were sufficient promises to constitute an enforceable contract. The trial court correctly noted that these
cases deal with cohabitation and promises of support, not promises of an interest in real estate.
-
LEVINE v. KONVITZ
(App. Div., A-6449-03T5, approved for publication February 6, 2006):
In order to establish a prima
facie case for palimony, a plaintiff must present competent
evidence showing:
(1) that the parties cohabitated;
(2) in a marriage-type relationship;
(3) that, during this period of
cohabitation, defendant promised plaintiff that he/she would
support him/her for life; and
(4) that this promise was made in exchange for valid consideration.
[In re Estate of Roccamonte, 174
N.J. 381 (2002); Crowe v. De Gioia, 90 N.J. 126 (1982); and
Kozlowski v. Kozlowski, 80 N.J. 378 (1979).]
Cohabitation is
an indispensable element of a cause of action seeking palimony
support.
However, the Court specifically did not address the
question of how long a period of cohabitation is required in
order to satisfy this element of the cause of action --
a court confronted with this issue
should look to the length of the cohabitation as an indicator of
the parties' commitment to the relationship, as that may bear on
the question of valid consideration. In other words, a lengthy
period of cohabitation provides a more reliable indication that
the relationship involved:
[A] way of life in which two people commit
to each other, foregoing other liaisons and
opportunities, doing for each other whatever
each is capable of doing, providing
companionship, and fulfilling each other's
needs, financial, emotional, physical, and
social, as best as they are able.
[In re Estate of Roccamonte, 174 N.J.
at 392.]
Although the quality, nature, and extent of the
consideration sufficient to sustain a palimony action may differ
depending on all the circumstances, the
rendering of such consideration must be done in a setting of
cohabitation.
Requiring cohabitation as an element of a palimony action
provides a measure of advance notice and warning, to both
parties to a relationship, and to their respective family
members, that legal and financial consequences may result from
that relationship. In this context, cohabitation requires the
demonstrable act of setting up a household together. Thus, in
contrast to an extramarital affair, even a long-term one,
cohabitation announces to the ones most affected by the
existence of the relationship, the innocent spouse and dependent
children, that defendant has entered into a relationship that
may result in significant and long-term impairment of family
assets.
Cohabitation is the physical manifestation of "the undertaking of a
way of life in which two people commit to each other, foregoing
other liaisons and opportunities." [In re Estate of Roccamonte,
174 N.J. 381, 392 (2002).]
- Law Lessons from
McDONALD v. ESTATE OF MAVETY
(App. Div., A-1005-04T1, approved for publication February 23, 2006):
The fundamental principle upon which courts decide palimony
cases is that "the formation of a marital-type relationship
between unmarried persons may, legitimately and enforceably,
rest upon a promise by one to support the other." In re Estate
of Roccamonte, 174 N.J. 381, 392 (2002). "[T]he right to
support in that situation does not derive from the relationship
itself but rather is a right created by contract." Id. at 389.
A palimony contract may be oral and may be either express or
implied. Ibid. (citing Kozlowski v. Kozlowski, 80 N.J. 378, 384
(1979)). Its existence and terms "are ordinarily determinable
not merely by what was said but primarily by the parties' 'acts
and conduct in the light of . . . [their] subject matter and the
surrounding circumstances.'" Ibid. (quoting Kozlowski, supra,
80 N.J. at 384). "[A] general promise of support for life,
broadly expressed, made by one party to the other with some form
of consideration given by the other will suffice to form a
contract. . . . [even] without any further specification or
elaboration of its terms . . . ." Id. at 389-90 (citing Kozlowski,
supra, 80 N.J. at 384-85). When the court is
satisfied that such a promise was in fact made, and subsequently
broken, it will award the promisee "'a one-time lump sum . . .
in an amount predicated upon the present value of the reasonable
future support [the promisor] promised to provide, to be
computed by reference to . . . [the promisee's] life
expectancy.'" Id. at 390 (quoting Kozlowski, supra, 80
N.J. at
385).
A critical element of a palimony claim is cohabitation for
a significant period of time. Another panel of this court has
recently reiterated, after analyzing the holdings in Roccamonte,
Crowe, and Kozlowski, that failure to prove cohabitation in a
marital-type relationship is fatal to a palimony claim. Levine
v. Konvitz, ___ N.J. Super. ___, ___ (App. Div. 2006) (slip op.
at 2). A long-term intimate romantic relationship unaccompanied
by actual cohabitation will not suffice. Id. at ___ .
A palimony claim "is simply a contractual
undertaking binding the estate like any other contractual
commitment the decedent may have made in his lifetime."
Roccamonte, supra, 174 N.J. at 397. The clear language of
N.J.S.A. 2A:81-2 [the "Dead
Man's Statute"] applies to the claim.
That statute requires clear and convincing
proof where a claim "supported by oral testimony of a promise,
statement or act" of a deceased party underlies the claim
against that party.
- Available Resources
- Return to General Topic Index
NOTE: If you believe that ANYTHING on this Webpage is misspelled, incomplete, inaccurate or downright wrong;
or if a Link fails to link to its intended Webpage, please send me
an Email, expressing your
concern or opinion.
Also, please be mindful that THE INFORMATION AND SOURCES PROVIDED HEREIN MAY NOT BE ACCURATE OR COMPLETE -- YOU
SHOULD CONSULT WITH AN ATTORNEY BEFORE RELYING ON THIS INFORMATION. No
warranties, express or implied, are made regarding the accuracy, completeness,
or usefulness of the information.
Also, please be aware that the information on this Webpage DOES NOT constitute LEGAL ADVICE,
which advice will only be given in PRIVATE CONSULTATION, after entering into an ATTORNEY / CLIENT RELATIONSHIP,
and the execution of a WRITTEN RETAINER AGREEMENT. Also, simply sending to me an email or providing information
to me does NOT create an ATTORNEY / CLIENT RELATIONSHIP --
if you wish to retain me
as your attorney or mediator, you are welcome to call me at (908)486-2200, or to
Email me, to schedule an
appointment.
Links
Linked sites are NOT under the control of the Paul G. Kostro, A Professional
Corporation or Paul G. Kostro, Esq. (the "Authors") and the Authors are
NOT
responsible for the content of any linked site or any link contained in a linked
site.
The Authors do NOT endorse websites, companies or entities to which links are
provided.
The Authors reserve the right to terminate any link at any time.
If you decide to access any of the third party sites linked to, you do so
entirely AT YOUR OWN RISK.
© Paul G. Kostro, Esq. 2005
