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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.

  • How long have the parties known each other?
  • Did the parties ever reside together? For what period(s) of time?
  • During the relationship, were there any periods of separation?
  • How old is each party? What is the current mental and physical health of each party?
  • To what extent did the parties ever hold themselves out as husband and wife?
  • Were any children born or adopted during the parties' relationship?
  • Did the parties ever acquire any jointly titled real estate or other assets?
  • Did the parties ever maintain any bank or other joint financial accounts?
  • Did the parties ever obtain insurance coverage (auto, life, homeowners, disability, etc.) for each other in any capacity?
  • Were the parties ever married to another person prior to this relationship? Were there any children in such prior marriage or any other prior relationship? What is the nature of the relationship between any prior child from such prior marriage/relationship to his/her parents and to the parties in this relationship?
  • Does or did either party pay or receive any child support with respect to a child born of any prior marriage/relationship?
  • Does or did either party pay or receive any alimony or other form of support or maintenance to or from a prior spouse or partner?
  • Were the parties ever engaged to be married? Were any engagement or wedding rings purchased or exchanged? Was any wedding date ever scheduled, with or without wedding announcements?
  • Did either party ever employ the other party for financial or other remuneration?
  • Did the parties ever jointly manage, own, or operate any venture, partnership, corporation or other entity?
  • Did the parties ever file federal or state income tax returns on other than an individual basis?
  • Did the parties ever register or enroll with any third parties as husband and wife, such as health care providers or employers? Did the parties ever enter into a Domestic Partnership Agreement or a Civil Union, in New Jersey or in any other jurisdiction?
  • Did either party name the other party as executor, trustee, beneficiary or otherwise in any will, trust, retirement asset designation or other testamentary documentation?
  • Did the parties ever borrow funds, by way of mortgage, loan, or otherwise, from any third party in any joint capacity?
  • Did either party ever lend, gift or escrow funds or other consideration with respect to the other party?
  • Was any type of prenuptial, cohabitation or other agreement ever prepared by the parties or by counsel on their behalf with respect to any aspect of their relationship?
  • Did either party ever execute a power of attorney, living will or medical authorization with respect to the other party?
  • What was the standard of living established during the relationship and during any period of cohabitation? (Weishaus v. Weishaus, 180 N.J. 131 (2004), and Crews v. Crews, 164 N.J. 11 (2000)).
  • What is the current life expectancy of each party determined under actuarial tables?
  • What are the educational, professional and vocational backgrounds of each party?
  • What are the current financial circumstances of each party?
  • Was any litigation ever prosecuted by or against the parties either jointly or in any dual capacity?
  • To what extent are there any documents that evidence the relationship between the parties?
  • To what extent are there independent (i.e. neutral and unbiased) witnesses that are aware of any aspect of the parties' relationship?
  • When did either party first retain an attorney with respect to any aspect of their relationship?

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.

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