New Jersey Legislature: Statute of Frauds Held Applicable to Palimony Claims Based on Promises That Pre-Date the Writing Requirement
In January 2010, the New Jersey legislature enacted a significant amendment to New Jersey’s Statute of Frauds that provided that, in order to be enforceable, palimony agreements had to be in writing and each party must have the advice of independent counsel. In relevant part that statute stated as follows:
[N]o action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:
* * *
(h) A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.
N.J.S.A. 25:1-5(h). In Maeker v. Ross, decided February 4, 2013, the Appellate Division, reversing a trial court order denying a motion to dismiss and awarding pendente lite support, held that this amendment, and these requirements, are applicable regardless of when the promise was made. The court found the statute is “clear and unambiguous” that an action to enforce a palimony agreement can only succeed if the writing and independent counsel requirements are met. In Maeker, the plaintiff alleged the defendant’s promise was made before the statute’s enactment but she that the asserted breach, the defendant’s “abandonment”, occurred after the statute was enacted. Thus, by the time her breach of contract claim accrued, and her suit was filed, the statutory requirements were in place and, the court held, precluded enforcement of the defendant’s oral promises of lifetime support.
In Maeker, the plaintiff alleged that the defendant, with whom she lived from in or about 1998 through July 2011, had made repeated promises to take care of her and promised her lifetime support. In fact, in December 2010, months before he moved out of the home the two shared, the defendant had executed a power of attorney appointing her his attorney-in-fact and also executed a will that appointed her executrix and trustee and devised the entirety of his residuary estate to her. Nonetheless, her action for palimony failed. Neither the timing of these promises, nor these writings, were sufficient to save her claim given the plain statutory requirements.
Significantly, the Maeker court observed that even though the alleged promises of support were made before the amendment was enacted, the parties remained together for eighteen months after its effective date, during which time “they were in a position to execute a written palimony agreement and establish compliance with the Amendment. Instead, defendant chose only to execute a POA and will, both of which were notarized at an attorney’s office.”
The court also rejected plaintiff’s efforts to enforce defendant’s claimed palimony obligation on the theories of partial performance, unjust enrichment, quantum meruit, quasi contract and equitable estoppel. As to these latter equitable claims, the court found they “are merely different versions of her underlying palimony claim that is barred.”
The Maeker decision, based in part on the court’s determination of what was the legislative intent, represents a significant statement to parties, and their counsel, on both sides of the palimony issue, regarding enforcement of long-standing promises.