PALIMONY AGREEMENTS NO LONGER REQUIRE PRIVATE ATTORNEY INVOLVEMENT FOR ENFORCEMENT

Kathleen Moynihan v. Edward Lynch

Docket No. A-64-20

Decided March 8, 2022

Submitted by New Jersey Family Lawyer, Jeffrey Hark.

In a recent decision the Supreme Court of New Jersey struck down a provision requiring private attorney review/involvement in palimony agreements as unconstitutional. Palimony agreements are usually between non-married couples for financial support in exchange for the other party to remain in the relationship.

In Moynihan, the parties met in 1997 and developed a romantic relationship. In the beginning, Lynch occasionally slept at Moynihan’s home. In 2000, Moynihan and her children moved to a home in Bordentown. Moynihan made the down payment on the home, which Lynch purchased with a mortgage and titled in his name. The parties shared the financial responsibilities of the home. Over time, Lynch moved into the home and became more active in the life of the Moynihan family. The parties discussed marriage but never wed.

In 2007, Lynch placed the title of the home into a trust and named Moynihan as the beneficiary upon his death. In 2013, Lynch converted his ownership of the home into a joint tenancy with rights of survivorship, naming himself and Moynihan on the deed.

Sometime between 2012 and 2014, the parties entered into a handwritten agreement, drafted by Lynch, which provided that, within five years of vacating their jointly owned home, Lynch would pay off the mortgage, deed it over to Moynihan, pay her $100,000, and, within two years of vacating the home, pay the real estate taxes on the property for two years. In 2015, the parties parted ways, and Lynch refused to abide by their written agreement.

Moynihan filed a complaint seeking enforcement of the written agreement and an alleged oral palimony agreement that she claimed the parties had entered before the Legislature in 2010 amended N.J.S.A. 25:1-5 to include subparagraph (h). That amendment mandated that palimony agreements be reduced to writing and “made with the independent advice of counsel.” She challenged N.J.S.A. 25:1-5(h) on constitutional grounds and urged enforcement as a typical contract.

The trial court found that N.J.S.A. 25:1-5(h)’s attorney-review requirement did not contravene Moynihan’s constitutional rights. The court determined that the written agreement was not a palimony agreement but more akin to an “orderly removal” in a landlord/tenant matter and enforced the agreement. The court also found that the couple did not enter an enforceable oral palimony agreement. The Appellate Division reversed, but it upheld the finding that the parties did not reach an oral palimony agreement.

The Supreme Court of New Jersey granted certification. The Court found that N.J.S.A. 25:1-5(h)’s attorney-review requirement was unconstitutional, violating Article 1 Paragraph 1. The Court found that the requirement for a private attorney was not present in any other area of the law, as parties have the right not only to be represented by an attorney, by the right not to be represented by an attorney. Therefore, a palimony agreement should not require attorney involvement to be enforceable.

This case is very important for non-married couples who separate.  If there is an agreement between them for support, that agreement now has a greater likelihood of being upheld. The agreement still must be in writing, but there no longer needs to be attorney involvement for enforceability – a requirement that existed since 2010.

If you have questions about palimony agreements, contact the experienced matrimonial divorce attorneys at Hark & Hark today.

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