Article by Capehart Scatchard

Statistics have shown that the rate of cohabitation has increased markedly in the United States in the last ten years. If you are cohabiting as a prelude to a marriage or a civil union which will take place in the foreseeable future, then this blog doesn’t apply to you. However, we are increasingly seeing clients who have been living together for five, ten and even fifteen years with no intention of entering into a marriage or a civil union. In those relationships, the parties view their cohabitation as the essence and the goal of their long term relationship, opting out of a marriage or a civil union altogether.

In a previous blog entitled “Cohabitation,” I discussed the applicable equitable laws available to a cohabiting couple (in the absence of a Cohabitation Agreement) as far as property distribution is concerned. Another area of serious concern when a cohabitating couple ends their long term relationship is support for the dependent cohabitant. Like property distributions, New Jersey statutes and cases governing alimony which are available during divorce or the dissolution of a civil union are not applicable to cohabitants. What is available is “palimony.” “Palimony” allowed a dependent person in a non-marital/non-civil union relationship to receive support if he or she could prove that the other cohabitant had promised to support him or her in the event of a break-up. Naturally, these cases were difficult to prove since very few people make a clear and incontrovertible statement during the relationship such as, “Honey, I promise to support you for the rest of your life.” Rather, these cases almost always had to be presented using circumstantial evidence of the promise to support.

As difficult as it was to obtain palimony in the past, effective January 18, 2010, it became even more difficult. On that date, the New Jersey legislature passed an amendment to the statute of frauds which required that “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” must be expressed in writing and must be made with the independent advice of counsel. In other words, “Honey, I promise to support you for the rest of your life,” must be expressed in writing by the person making the promise and both parties must have attorneys during the writing process to give them independent legal advice.

The recently published New Jersey case of Cavalli v. Arena held that the new palimony law was effective for all claims made after its effective date of January 18, 2010 unless the parties did not have time to put their promise in writing and comply with the statute. In the Cavalli case, which was decided eighteen months after the law was passed, it was found that the parties had ample time to comply with the statute and therefore, since the alleged promise was not in writing, there was no viable palimony claim. Given that even more time has passed since then, it will be difficult if not impossible to convince a Court that the parties did not have time to put their understanding into writing.

Thus, once again it bears repeating that a Cohabitation Agreement, setting forth property distribution and support, is the best way of protecting both parties’ interests. If the parties enter into a Cohabitation Agreement, then it will not be up to a “Court of Equity” to divide their property and they will have complied with the requirement that promises to provide support are made in writing.