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Palimony - A Litigator’s Checklist
Sooner or later, most matrimonial practitioners will be presented with a palimony case. To the extent that the current societal pendulum swing is away from traditional notions of marriage, legal and financial disputes between unmarried co-habitants and partners are on the rise. Thus, the probability of your encountering a palimony claim is greater today than it was yesterday.
What is palimony? Palimony is a portmanteau word, i.e., a term formed by merging the sounds and meanings of two different words, as in the combination of "pal" and "alimony". The term is said to have been coined by California attorney Marvin Mitchelson and now stands for the concept of support to be paid by and between unmarried participants between a marriage-like cohabitation relationship. A recent prominent example of a palimony claim was seen in 2004, when TV personality Bill Maher was sued for palimony in the amount of $9 million dollars by his ex-girlfriend, Nancy Johnson (the case was dismissed on or about May 2, 2005).
The legal concept of palimony emanates from the seminal California decision of Marvin v. Marvin, 18 Cal. 3d 660 (1976). The Marvin palimony doctrine then took hold in New Jersey with Kozlowski v. Kozlowski, 80 N.J. 378 (1979).
Since Kozlowski, various New Jersey appellate and trial court decisions have addressed different aspects of palimony litigation. Among these are In re Estate of Roccamonte, 174 N.J. 381 (2002); Devaney v. L'Esperance, 391 N.J. Super. 448 (App. Div. 2007); In re Estate of Sasson, 387 N.J. Super 459 (App. Div.), certif. denied 189 N.J. 103 (2006); McDonald v. Estate of Mavety, 383 N.J. Super. 347 (App. Div.), certif. denied, 187 N.J. 79 (2006); Levine v. Konvitz, 383 N.J. Super. 1 (App. Div. ), certif. denied, 186 N.J. 607 (2006); Crowe v. DeGoia, 203 N.J. Super. 22 (App. Div. 1985); Carney v. Hansell, 363 N.J. Super. 111 (Ch. Div. 2003); Mangone v. Mangone, 202 N.J. Super. 505 (Ch. Div. 1985); Crayne v. Marchese, New Jersey App. Div.; 2007 WL 655446, March 6, 2007 (unreported); Redeker v. Lutz, New Jersey App. Div.; 2006 WL 3391374; certif. denied, 183 N.J. 257(2005) (unreported); Aita v. Dey, New Jersey App. Div.; 2006 WL 3299876, November 15, 2006 (unreported).
The latest change in the panorama of New Jersey palimony law is the recent addition of requiring cohabitation between the parties. This criterion surfaced with the decision in Levine (see above), in which it was held to be "an indispensable element of a cause of action for palimony". But even more recently, a federal court, hearing a palimony case under its diversity of citizenship jurisdiction (after removal from the Morris County Family Part) held that cohabitation is not, in fact, "indispensable" to a palimony cause of action. This was based on its interpretation of what the Supreme Court of New Jersey might eventually rule on this issue (Carino v. O'Malley, U.S.D (D.N.J.), #05-5814, March 28, 2007). So, in addition to the moving target of the legal principles, of equal importance is the factual context in which such cases are adjudicated.
Careful analysis of the circumstances of each palimony case will remain the fundamental basis of advocacy in this area. On an increasingly frequent basis, family lawyers will be called upon to bring or to defend palimony claims. The following checklist is intended to assist in litigating possible palimony claims and issues.
Palimony cases are as challenging as any other presented to the matrimonial practitioner. As in every other difficult litigation, through preparation and early anticipation cannot be overestimated. Use of this checklist should be of help towards these goals.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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