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Cohabitation Not a Requirement for Palimony Claim, Says N.J. Supreme Court
New Jersey Law Journal
June 18, 2008
Cohabitation is not an absolute requirement for a successful claim for palimony but is only one of a number of factors a judge should consider, the New Jersey Supreme Court ruled on Tuesday.
A 6-1 majority, breaking with precedent set by nearly every other state court, said a plaintiff in a palimony case need only prove that there was a "marital-type relationship" rather than show that the couple lived together for some period.
"We hold that cohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required," wrote Justice John Wallace Jr. in Devaney v. L'Esperance, A-20-07.
The court nontheless found that plaintiff Helen Devaney failed to prove she had maintained such a relationship with the defendant, Dr. Francis L'Esperance, a New York City ophthalmologist for whom she had worked as a receptionist.
They began dating in 1983 and L'Esperance paid for her college education and purchased an apartment for her in North Bergen, N.J. The two also tried to have a child together, though unsuccessfully. She claimed he promised to leave his wife and marry her but never did. They broke up in 2003 and he kicked her out of the apartment.
Wallace said Superior Court Judge Maureen Mantineo correctly found that Devaney and L'Esperance never held themselves out to be a married couple. He said Devaney failed to prove L'Esperance promised to support her, a requirement for palimony under In re Estate of Roccamonte, 174 N.J. 381 (2002).
Still, Tuesday's ruling has wide coattails, since it means lack of cohabitation alone will no longer defeat a claim for palimony: a term of art for equitable recovery based on a long-term, spousal-type relationship between two unmarried parties.
"We do not read our jurisprudence as being so confining to make cohabitation a necessary requirement to a successful claim for palimony," said Wallace. "Rather, we opt for a more flexible approach that seeks to achieve substantial justice in light of the realities of the relationship. It is the promise to support, expressed or implied, coupled with a marital-type relationship, that are the indispensible elements to support a valid claim for palimony."
In most successful palimony claims, there will be cohabitation, he said, but not always. "There may be circumstances where a couple may hold themselves out to others as if they were married and yet not cohabit (i.e., couples who are separated due to employment, military, or educational opportunities who do not cohabit).
"The trier of fact must consider the realities of the relationship in the quest to achieve substantial justice," Wallace said. "[T]he trial judge should consider the entirety of the relationship and, if a marital-type relationship is otherwise proven, [the palimony claim] should not be rejected solely because cohabitation is not present."
In a concurring opinion, Justice Virginia Long agreed cohabitation should not be a requirement but said she worried the majority's opinion might be read too strictly and bar enforcement of an express contract for lifetime support. "I write only to flag that issue for future consideration," she said.
Justice Roberto Rivera-Soto concurred with the result but said cohabitation should continue to be a requirement "at a bare minimum."
"Even California -- the birthplace of the Marvin/palimony cause of action -- requires cohabitation as a prerequisite to recovery on a palimony case," he said, referring to Marvin v. Marvin, 18 Cal. 3d 660 (1976), in which the California Supreme Court first recognized palimony.
"More to the point, California makes the critical observation that if cohabitation were not a prerequisite to recovery, every dating relationship would have the potential for giving rise to such claims, a result no one favors," he said, citing Bergen v. Wood, 14 Cal. App. 4th 854 (Cal. Ct. App. 1993).
L'Esperance's lawyer, Hackensack, N.J., solo William Goldberg, says he anticipated this is how the New Jersey Supreme Court would rule. "I had conceded [at oral arguments in January] that there were circumstances where palimony could be awarded without cohabitation," he says.
Goldberg says the majority was correct in rejecting the bright-line rule requiring cohabitation, but finding that there must be a marital-type relationship. "To grant rights to a girlfriend equivalent to those of a wife, that would create a mess," he says. "But there is no reason for a bright-line rule. Every case has to be decided on its own merits."
Devaney's lawyer, JoAnne Juliano Giger, while disappointed with her client's loss, says she welcomes the Court's ruling on cohabitation. "This puts to rest the question that had been lingering since the Appellate Division decision" upholding the rule requiring cohabitation, she says.
"This is the first state to hold that cohabitation is not a required element for palimony," says Giger, of Roseland, N.J.'s Newman, McDonough, Schofel & Giger.
Matrimonial lawyer John Paone Jr., who was not involved in the case, also says the ruling is welcome news. "It just makes sense," says Paone, of Paone & Zaleski in Woodbridge, N.J. "In most of these cases, one of the parties is married and has something going on on the side. If that's so, why is there a need to show they cohabitated when that might an impossible test? Why should one party all of a sudden get the rug pulled out from under them just because they did not set up house together?"
Paone notes that in Carina v. O'Malley, 2007 WL 951953 (D.N.J. March 2007), a palimony case involving parties living in New Jersey and in Pennsylania, U.S. District Judge Katherine Hayden ruled that a bright-line cohabitation rule would not comport with principles of equitable justice. "Judge Hayden anticipated the New Jersey Supreme Court would hold cohabitation was important, but not an indispensible factor," Paone says.
