Palimony is a claim for support between unmarried persons. In 2010, legislation was passed which mandated that palimony agreements had to be in writing and signed by the parties in order to be enforceable. Prior to that date, there was no legislation regarding palimony, and we only had case law to guide us.

New Jersey case law recognized a claim for support between unmarried persons if those persons had formed a marital-type relationship, and one person promised to support the other person, whether express or implied. In the recent case of Botis v. Estate of Kudrick v. Wells Fargo, an issue arose as to whether the legislation regarding palimony, effective January 18, 2010, was retroactive and therefore governed this case which had been filed prior to the effective date of the statute.

The facts are as follows:  The Plaintiff began living with the decedent in 1976. She asserted that in 1984 she invested $17,000 from the proceeds of the sale of her house into furnishing the decedent’s home, where she lived. In 1995, they jointly purchased a residence, although her name was removed from the Deed at a later date, presumably for tax purposes.

The Plaintiff claimed that they lived in a marriage-like relationship, that she became dependent upon the decedent for support and that he promised he would always take care of her. In the event of his death, she would be cared for as she was during his life. When he became stricken  with cancer, the Plaintiff cared for him. Shortly before his death, she learned that his Will left his entire estate to his daughter and grandchildren. As a result, in or about November 2008, the Plaintiff filed a Complaint for palimony and for the transfer of title to two residences. The decedent’s estate claimed that the Plaintiff was not in a marital type relationship with the decedent, and, therefore, she was not entitled to relief.

In March, 2010, after the law was enacted regarding palimony, the estate of the decedent moved to dismiss Plaintiff’s Complaint based on that law since no promise of support was made in writing.

The Appellate Court looked to the plain language of the statute which says that it shall take effect immediately. There was no indication that the legislation favored retroactive application. Further, there was no indication as to whether the law applied to claims that were pending on the date of its enactment. As a result, the Appellate Court reiterated the general rule that statutory construction favors prospective application of statutes.

In a case such as this, the parties could not have known or anticipated the pre-requisites to enforcement of a palimony promise when the decedent died almost 1-½ years prior to the effective date of the statute. While the decedent was alive, case law supported the expectation that a palimony agreement could be enforceable without being executing in writing.

This case seems to indicate that a writing is not necessary for any palimony claim filed before January 2010. However, another question presents itself from these facts. Does the new law apply if the parties’ relationship is irretrievably broken before January 2010 but the claim for palimony is filed after January 2010?

As in any case, the facts must be ascertained and analyzed before determining whether a party has a claim for palimony.