STATE OF NEW JERSEY
PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION
Assemblyman MICHAEL PATRICK CARROLL
District 25 (Morris and Somerset)
Provides that recent law requiring palimony agreements to be in writing encompasses palimony agreements made prior to the effective date unless certain circumstances apply.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning palimony and amending R.S.25:1-5.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. R.S.25:1-5 is amended to read as follows:
25:1-5. Promises or agreements not binding unless in writing. No 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:
a. (Deleted by amendment, P.L.1995, c.360.)
b. (Deleted by amendment, P.L.1995, c.360.)
c. An agreement made upon consideration of marriage entered into prior to the effective date of the "Uniform Premarital Agreement Act," N.J.S.37:2-31 et seq.;
d. (Deleted by amendment, P.L.1995, c.360.)
e. (Deleted by amendment, P.L.1995, c.360.)
f. A contract, promise, undertaking or commitment to loan money or to grant, extend or renew credit, in an amount greater than $100,000, not primarily for personal, family or household purposes, made by a person engaged in the business of lending or arranging for the lending of money or extending credit. For the purposes of this subsection, a contract, promise, undertaking or commitment to loan money shall include agreements to lease personal property if the lease is primarily a method of financing the obtaining of the property;
g. An agreement by a creditor to forbear from exercising remedies pursuant to a contract, promise, undertaking or commitment which is subject to the provisions of subsection f. of this section; or
h. (1) 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.
(2) Paragraph (1) of this subsection shall apply to any agreement based on a promise made prior to January 18, 2010 unless the party seeking to enforce a non-written agreement demonstrates by clear and convincing evidence that such party was aware of the state of the law on the date of the agreement and relied upon the state of the law when entering into the agreement.
(cf: P.L.2009, c.311)
2. This act shall take effect immediately and shall apply to any action filed on or after the effective date and shall also apply to matters filed with a court that have not yet been dismissed or finally adjudicated as of the effective date.
Under P.L.2009, c.311, enacted January 18, 2010, “palimony” agreements are not enforceable unless they are in writing and were made with the independent advice of counsel. P.L.2009, c.311 applies to “[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.” This bill provides that P.L.2009, c.311 is retroactive, encompassing palimony agreements made prior to its January 18, 2010 effective date, unless certain circumstances apply. Under the bill, a non-written palimony agreement would be enforceable only if the party seeking to enforce it demonstrates by clear and convincing evidence that such party was aware of the state of the law on the date of the agreement and relied upon the state of the law when entering into the agreement.
This bill addresses the decision of the New Jersey Supreme Court in Maeker v. Ross, 219 N.J. 565 (2014), which held that the Legislature did not intend P.L.2009, c.311 to retroactively encompass oral palimony agreements made prior to the enactment’s January 18, 2010 effective date. Thus, under the opinion, an oral palimony agreement made prior to that date can still be enforced. The court also did not preclude the possibility that oral palimony agreements made after the enactment could also be enforced. The court stated: “In light of our holding that oral palimony agreements predating the 2010 Amendment . . . are not extinguished by the new law, we choose not to decide whether equitable forms of relief would be available in the absence of such an agreement.”
It is the view of the sponsor that this bill is intended to clarify that the provisions of P.L.2009, c.311 apply to pre-existing oral agreements when the proponent of the agreement cannot demonstrate reliance on the existing state of the law when entering into the agreement. It is also the intent of this bill that no oral agreements entered into after the effective date of P.L.2009, c.311 shall be enforced under any circumstances.
It is the sponsor’s view that a person who relies upon knowledge of the existing law, only to have that law change and deprive him of the benefits of a previously enforceable agreement, makes a powerful case that the law applicable at the time of the agreement should govern. However, in the more common circumstances, such agreements are made in – perhaps unfortunate – ignorance of the law, and it works no unfairness to a party who did not rely upon the law when entering into such an agreement to apply the Legislature’s idea of good policy to any case affecting the party.
The sponsor further believes that the previously adopted preclusion of palimony actions represents the Legislature’s strong disapproval of the judicial invention of a deeply problematic cause of action. Not only are such suits subject to selective recollections, but, in the view of the sponsor, people wishing to enjoy the benefits attendant to marriage should marry. It is the view of the sponsor that, while, certainly, nothing should preclude the enforcement of a bona fide private contract for such benefits, alleged oral promises are simply too uncertain a basis upon which to base such profound consequences.