Whether at family gatherings, cocktail parties or making small talk at the gym, when people learn I am a divorce lawyer, they often question whether it makes sense to get married in today’s society, that it is “just a piece of paper”, and that people can simply “shack up” if they want to be together. After all, if it’s good enough for the rich and famous – Hollywood’s power couple Brad Pitt and Angelina Jolie for example – why shouldn’t it be good enough for me? The negative stigma of “living in sin” having all but disappeared, most people are of the mind that being married or not makes no difference. Since most of us don’t fall into the category of the “rich and famous,” the reality is that according to New Jersey law it can make all the difference in the world – particularly if one party in the relationship is financially dependent upon the other.
New Jersey does not recognize common-law marriage. To be considered married in New Jersey, one must obtain a government issued license and participate in a formal ceremony of marriage. Merely living together and holding yourself out as married is of no legal effect in this state. However, as the societal mores changed and living together became more accepted and common place, the law evolved to address the consequences arising out of these relationships and their termination. Often one party to that relationship moved, gave up a home, or gave up a career or job to move in with someone. Children may have been born of that relationship and that person may have taken on the role of primary caregiver. That person may have become financially dependent upon the other and there may have been promises or assurances, whether in words or in deeds, of being supported now and in the future. These relationships may have gone on for years. Problems surface and the relationship disintegrates. Where did that leave the more financially disadvantaged party? In New Jersey, as in many other jurisdictions, the ability to receive alimony or spousal support is a matter of statute, courts being empowered to do so only incident to dissolution of a “marriage.” N.J.S.A. 2A: 34-23. To address this situation, New Jersey courts, starting with the case of Kozlowski v. Kozlowski, 80 N.J. 378 (1979) recognized as legally cognizable a claim for support between unmarried persons which became commonly known as “palimony.” The operative principle of a palimony claim was that the formation of a marital-type relationship between unmarried persons and conducting oneself accordingly may legitimately and enforceably rest upon a promise by one to support the other, whether expressed or implied. Hence, such alimony actions were based upon principles of contract. Since rarely, if ever, were such promises of support put in writing, the cases dealt with claims of promises orally made and/or implied from the actions of the parties during the relationship. All of this abruptly changed in January, 2010 when the New Jersey Legislature passed an Amendment to the Statute of Frauds requiring that for any promise by one party to a non-marital personal relationship to provide support to the other to be enforceable same must be in writing, made with independent advice of counsel for both parties. N.J.S.A. 25:1-5(h). Did this law apply to pre-existing non-marital relationships where an unwritten promise of support was allegedly made prior to January 2010? In the recent Appellate Division case of Maiker v. Ross , 430 N.J. Super 79 (App. Div. 2013), the answer as a resounding yes. Concluding that a cause of action accrued only at the time the support agreement was breached, not at time the promise of support was purportedly made, unless the breach occurred prior to January, 2010, the Amendment barred such palimony claims in the absence of the required writing. The court further held that “equitable principles” would not give rise to a claim for support. The case has effectively served as a death knell to palimony claims in New Jersey, regardless of the length of the relationship, the level of dependency or any other factors.
Does this mean that a period of un-married cohabitation can never be considered in a claim for support? Curiously, it can be if the parties subsequently marry each other. While the length of the “marriage” is among the myriad of factors a court shall consider in assessing a claim of alimony in an action for divorce, our courts have held that periods of cohabitation can be added when determining the duration of the martial relationship if one spouse was economically dependent upon the other during the period of cohabitation. McGee v. McGee, 277 N.J. Super 1 (App. Div. 1994); see also Christopher v. Christopher, 2009 WL 1918080, an unpublished Appellate Division opinion in which this firm represented the dependent spouse and successfully argued this position. Hence, assuming the exact same set of circumstances, each living together for a period of 20 years, in one instance the parties never married and in the second instance, the parties lived together for 19 of those years, got married and were together another year before that relationship ended. In the first scenario, the economically dependent party would have no enforceable claim for support while in the second scenario, the lengthy period of cohabitation may be “tacked” on to the short term of the marriage to enhance a claim of alimony for that party (or alternatively depending upon one’s point of view, the act of marriage exposing the non-dependent party to a claim of support where one did not exist). This example may be extreme but a question which remains unanswered, since the court in Maeker declined to address constitutionality issues in its ruling, is whether such a disparate result is legally justified or fundamentally sound on equal protection or due process grounds. Another question is whether the tacking of a period of cohabitation in considering the duration of the marriage would still be allowed if the significant amendments to the alimony statute currently pending in the New Jersey Legislature tying the duration of alimony to the length of the marriage become law.
To marry or not to marry? Given the current status of the law, how you choose to answer may make a world of difference.