In what appears to be a case of first impression, a judge has found an exception to the 2010 New Jersey law that outlawed palimony without written agreements.
Superior Court Judge Ned Rosenberg found that Sharon Joiner-Orman — by her 39 years of companionship to actor Roscoe Orman, as homemaker and mother of their four children — "fully performed her end of the bargain."
In granting Joiner-Orman's motion for declaratory judgment, Rosenberg found that to permit Orman to avoid performance of his promise to take care of her financially for the rest of her life would work a fraud, justifying an exception to the statute.
"There is no good reason why a partial — or at the very least — full performance exception should not apply to the context of palimony agreements," Rosenberg wrote.
The doctrine of performance holds that, where an oral agreement exists, and a party has performed, the contract will be enforced if to do otherwise would create an inequity.
The statute of frauds was amended three years ago to require palimony agreements to be formalized in writing and signed with advice of counsel.
The amendment was passed in response to Devaney v. L'Esperance, 195 N.J. 247 (2008), which held that cohabitation was not a required element of a palimony claim.
Rosenberg told the parties on Wednesday to submit more financial information by Oct. 1, to be used at a later hearing on the amount of the award.
Orman is an actor best known as Gordon on Sesame Street, a role he has had since 1974.
He also has appeared in television shows such as Law and Order, Law and Order: Special Victims Unit, Sex and the City and The Wire.
He and Joiner-Orman began dating in 1972 and started living together soon after. They never put their agreement in writing or sought independent advice of counsel.
In an inscription to her in his 2006 memoir, Orman wrote, "Thank you for being my wife, my partner, the love of my life. Always and forever, Roscoe."
The relationship ended in 2010, after the effective date of the amendment to the statute of frauds, when he moved out of their home in Montclair. He provided her with some financial support until 2012, when he remarried.
Orman asserted that applying the performance exception would eviscerate the 2010 amendment, but Rosenberg rejected the contention.
"Neither the amendment's plain language nor the legislative intent modifies the basic definition of palimony, the purpose of the Statute of Frauds, or the common-law exceptions thereto," Rosenberg said.
"Instead, by adding palimony agreements to the Statute of Frauds, the defendant can plead the Statute of Frauds as an affirmative defense, and shift the burden on the plaintiff to prove [performance] by clear and unequivocal evidence," the judge continued.
Joiner-Orman's attorney, Verona solo Charles Cohen, says he knows of no other decision by a New Jersey court enforcing an oral palimony agreement based on a statute of frauds exception.
Orman's attorney, W. Thomas McDonough III of Ashenfelter, Slous, McDonough & Trevenen in Montclair, says the ruling allows the statute's intent of the statute to be thwarted and he will appeal.
Brian Schwartz, head of a Summit firm and chairman of the Family Law Section of the State Bar Association, says if upheld, the ruling "would drive a tremendous hole through the statute."
He adds that he hopes Rosenberg is affirmed. "The Family Part is supposed to be a court of equity, a court of fairness. Clearly, after a 39-year relationship, [the plaintiff] should not be deprived of the rights which arose out of their contract," he says.
Schwartz says Orman's payment of financial support strengthens Joiner-Orman's case.
Another family law attorney, Somerville solo Carl Taylor III, agrees, but adds that if the ruling is upheld, courts will have to hold lengthy hearings on whether conditions support a finding of performance.
"My gut reaction is, if this case goes up to the appellate level, it's going to be overturned because [appellate judges] are trying to close up all the loopholes they can on the palimony statute," he says.
"If you require a plenary hearing to figure out" performance, "the judicial economy that the 2010 amendment was designed to provide is taken away," Taylor adds.