IS PALIMONY REALLY ALIMONY?
In the State of New Jersey, the law on palimony is changing rapidly. It seems almost every month the New Jersey Law Journal is reporting on yet another change/amendment/modification to our States’ palimony laws.
Most recently in 2008, our States’ highest court held that it was not necessary to have cohabited with someone to ask for and receive palimony from that person. Devaney v. L’Esperance 19S NJ 247 (2008). Indeed, if a person has made an express or implied promise to financially take care of someone for the rest of their lives, it is not necessary for the promisee to have cohabited with the promisor to receive Palimony.
Yet in January 2010, our legislature amended the Statute of Frauds N.J.S.A. 25-1-5(h) to require that a person’s palimony claim is invalid unless the promise is expressed in writing and made with the independent advice of counsel for both parties. Only two years after Devaney, the law on palimony was changed so that a palimony claim was only valid if there was a written promise - not an implied promise made by one party to another, where both parties had independent legal advice.
As you can see, the law on palimony was a fast moving target with the filing of palimony claims increasing. The law once again was modified by the Appellate Court in Botis v. Estate of Kudrick A05562-09, where it was decided that the amendment requiring a written promise of palimony is only to be used prospectively or on cases that were filed after January 10, 2010. Otherwise it would be an injustice to those who filed their claim prior to January 10, 2010 without having the requisite knowledge of the written promise requirement.
Above is the description of the law on palimony in our State of New Jersey.
However, I would now like to examine some nuances in palimony v. alimony. It cannot be disputed that despite the new case law which states that cohabitation is not a necessary element of a palimony claim. Palimony is essentially support to your significant other for her non-financial contribution to your life. The purpose of alimony is strikingly similar to the purpose of palimony. However, unlike alimony the payee does not report her palimony as taxable income and the promisor cannot deduct said payments.
Another difference between palimony and alimony is that there is no case law or statutory law that compels the palimony to end upon re-marriage of the recipient of the palimony. Of course, alimony ends upon remarriage of the promisee so why not palimony? Or even more importantly, if the promisor begins to cohabit with yet another man, the law on palimony does not require that there be a review of the palimony payments due to cohabitation with another person. This is clearly inconsistent with the law on alimony per Gayet v. Gayet and Konzelman v. Konzelman. It stands to reason that the promisee has received the benefit of her new housemate making a financially contribution to her expenses; therefore, this situation must be reviewed.
Or conversely the cohabitant is benefitting off their palimony payments by living off the support that they receive from their ex-mate. This sounds like an alimony situation, yet the promisor can get no relief of his payments, (unless agreed to by the promisee) as there is no law on this with regard to palimony.
Fairness also dictates that palimony be deductible to the payor, and taxable to the payee. Moreover, if the payee has a new housemate, the payee’s palimony must be reviewed to see if the palimony payments should be reduced and terminated.
In the end is palimony really alimony? Or should it be treated as alimony?