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N.J. High Court Hears Pitch for Palimony Sans Cohabitation
New Jersey Law Journal
January 23, 2008
For the nearly three decades that New Jersey has recognized a cause of action for palimony, cohabitation has been the litmus test. No degree of love, devotion, mutual assurance or sacrifice has been found sufficient without it.
But what if the couple is intimate for two decades but can't cohabit because one party stays married to someone else? Put more bluntly, is there equitable power to award palimony to a mistress?
The lower courts have said no, putting the issue before the state Supreme Court in L'Esperance v. Devaney, A-20-07.
Palimony is shorthand for equitable recovery based on a long-term, spousal-type relationship between two parties not married to each other. It was first recognized three decades ago in California in Marvin v. Marvin, 18 Cal. 3d 660 (1976). New Jersey followed suit in Kozlowski v. Kozlowski, 80 N.J. 378 (1979), a case also involving a married man in a relationship with another woman.
But in Kozlowski, there was cohabitation, unlike the case now before the court, which presents other factors that arguably made the relationship just as strong as if the couple lived together.
In 1983, Helen Devaney started working as a receptionist for Dr. France L'Esperance, a New York City ophthalmologist. She was 23 and single, he 51 and married with children. When they became romantically involved, he purchased an apartment for her in North Bergen, N.J., where he visited her frequently over the course of 20 years.
According to Devaney, the doctor continually promised to divorce his wife and marry her. He paid for her college education. They even tried to have a child together, which led to her undergoing fertility treatments. "[H]e was going to marry me, we were going to have a baby, everything was going to be fine," Devaney said in her testimony.
But L'Esperance never left his wife, and in 2003, he and Devaney broke up, leaving her embittered, angry and near the end of her child-bearing years. And he kicked her out of the apartment, which he owned in his name.
Devaney's lawyer, JoAnne Juliano Giger, argued Tuesday that in this situation -- that of a woman who devoted a large part of her adult life to a man who failed to live up to his repeated promises of marriage -- the court should "reject the bright-line rule of cohabitation."
"This was more than a boyfriend-girlfriend relationship," said Giger, of Roseland, N.J.'s Newman, McDonough, Schofel & Giger. "This was her entire adult life, her child-bearing years. She was spurred on by Dr. L'Esperance's promises. He followed through on all those promises, except for one."
Making cohabitation the sine qua non for a palimony claim "deprives the family court of its equitable power" to fashion a remedy when particular facts call for one, Giger said.
Justice Barry Albin asked if the doctor's wife and children knew of his relationship with Devaney, noting, "This may make a difference if they were presenting themselves to the world as a couple."
Giger said the wife and children knew, as did Devaney's close friends, but L'Esperance's business associates were unaware. "They flew under the radar to his business associates, but to her friends and family, they were out there," she said. "How was your client diminished economically?" Albin asked.
"It's easy to conclude that she was better off," said Giger. "But she found herself middle-aged with a [master's] degree in art history. Nothing really to market herself. She pursued the degree because he liked art."
"You're blaming him because she got a master's in art history?" Albin asked.
It is not a question of blame, said Giger. Rather, "she was drawn into economic dependency."
"Can you have a marital-type relationship when one party is married?" Justice John Wallace Jr. asked.
"I believe you can," Giger replied. "Holding yourselves out as husband and wife is not a requirement for palimony."
L'Esperance's attorney, William Goldberg, said the relationship between L'Esperance and Devaney was not as close as Devaney portrayed it, and he urged the court to not allow her to profit from adultery without cohabitation.
"That would create a new concept of family," said Goldberg, a Hackensack, N.J., solo. "I suggest the alternative: a married man, living exclusively with his wife, cannot be said to have a marital-type relationship with another woman because that doesn't make sense."
L'Esperance was more like a "visitor" to Devaney's apartment, he said, adding that during the last three years of their relationship, they barely saw each other.
Justice Roberto Rivera-Soto seemed nonplussed at the argument. "Your client was an adulterer and he shouldn't be held liable? That's a little troubling to me," he said.
Goldberg responded, "She was a 23-year-old woman who knew he was married. She knew at every turn" that he was not getting a divorce.
"Let's let women take some responsibility for their choices. She must have figured out [there was not going to be a marriage] somewhere along the way," he said.
Goldberg acknowledged that L'Esperance may have made promises of marriage, but insisted there was never any promise of indefinite financial support. No one, he said, can be held liable for a promise of marriage that is never fulfilled.
"Look at the way we're playing with words," said Albin. "I will support you. That's OK. I will marry you. That's no good?"
"I agree," said Goldberg. "A promise of marriage is unenforceable."
