Palimony: Live Free or Die - But Just Don't Live Together
Palimony, support paid by one person to another based on a marriage-type relationship and a promise to support. To prove a case of palimony, the person seeking support must establish
(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.
The principal of palimony rests on the notion that "a marital-type relationship is no more exclusively dependent upon one partner's providing maid service than it is upon sexual accommodation. It is, rather, the undertaking of 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. And each couple defines its way of life and each partner's expected contribution to it in its own way." _ Levine v. Konvitz_, 383 N.J. Super. 1, 3 (App. Div. 2006).
The concept of palimony makes sense in a society that is defined by indefinable family structures. Also, from a public policy stand point, it makes sense to place the burden of supporting another on the person who created the dependency, rather than shift the burden to society by forcing a dependent person to rely on public assistance. However, the flip side of the coin makes me think that palimony creates greater rights in non-married people than married couples have.
In a recent 3rd Circuit Court decision, _ Carino v. O'Malley, the Federal Court held that cohabitation is not an indispensable element of a claim for palimony. In this case, the parties involved in a romantic relationship were an 18 year old college student and a 55 year old divorced father of 3 children. Over the course of 17 years, they maintained an exclusive relationship. She moved from New Jersey to New York to be closer to her employment and because he convinced her it was more convenient for their relationship. He helped pay for her apartment and he purchased a condominium in New York City. He also provided her with significant cash and paid for her credit cards, health insurance , utility bills and trips the two took together. Furthermore, he made certain promises to her to provide continued financial assistance. The two, however, never lived together. Although the Federal Court applied New Jersey law, as it was required to do so under this case, and recognized that several New Jersey cases held cohabitation to be an indispensable element of a palimony claim, the Federal Court rejected the bright-line requirement. The Federal Court reasoned that the New Jersey decisions were not based upon explicit statements of the Supreme Court, but rather on an interpretation of the Court's definition of a "marital-type" relationship. Shortly after the Federal Court's decision, the New Jersey Appellate Division decided another palimony case, _ Devaney v. L'Esperance, and again held that cohabitation is an essential element of a palimony claim. The New Jersey Supreme Court heard argument on this recent decision on January 22, 2008. We await the decision.
In our dynamic society, committed relationships can encompass something other than sharing the same residence. As we know from the advent of civil unions, we certainly have to distance ourselves from long standing notions of the traditional family unit. However, allowing a claim for palimony without requiring cohabitation exposes each one of us to outrageous claims for support. To protect ourselves, do we now have to create a new brand of contract - the "Anti-Relationship Agreement" or the "Friendship Agreement" - just so we all know where we stand?