Thursday, January 7, 2010
Wednesday, January 6, 2010
Palimony Bill
Please be advised that the palimony bill (A4296) is scheduled for vote in the Assembly on Jan 11.
Over the past nine months, representatives of the Family Law Section have actively opposed legislation which would amend the Statute of Frauds to require that all palimony agreements be set forth in writing. In fact, this Section’s opposition to the legislation dates back to the inception of the legislation in 2004.
In 2004, Assemblyman Michael Patrick Carroll (District 25 -Morris), put forth a proposed amendment to the Statute of Frauds which sought to add, as a non-enforceable agreement, “A promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination.” The express purpose of the legislation was to overturn the ruling in Kozlowski v. Kozlowski, 80 N.J. 378 (1979), which authorized enforcement of a promise of lifetime support by one cohabitant to another in a marital-like relationship, if one of the partners was induced to cohabit by the promise. The court held that the right to such support is found in contract principles and that the contract may be either express or implied. The bill was referred to the Assembly Judiciary Committee on May 10, 2004. On March 6, 2006, identical legislation, A2796, was again introduced by Asm. Carroll and again referred to the Assembly Judiciary Committee.
Over two years passed before Senators Nicholas P. Scutari and Gerald Cardinale introduced S2091 in the Senate on October 2, 2008, reflecting a proposal identical to the prior legislation to amend the Statute of Frauds. The Senate referred S2091 to its Judiciary Committee immediately; the Senate Judiciary Committee released the bill on February 9, 2009 with an amendment to require that written palimony agreements would not be enforceable unless supported by independent legal advice to both parties. Thereafter, Asm. Carroll again introduced the proposed amendment to the Statute of Frauds on (labeled as A3833) on March 9, 2009, where it was again referred to the Assembly Judiciary Committee.
The Executive Committee of the Family Law Section reviewed S2091 on February 19, 2009, voting to oppose the legislation with high priority. The Legislation sub-Committee promptly conveyed the section’s position to the NJSBA. Nonetheless, on March 16, 2009, the Senate passed S2091 with a vote of 21-14. Roll call for the voting can be viewed at http://www.njleg.state.nj.us/bills/BillView.asp.
In April 2009, Edward O’Donnell and Charles Vuotto (then serving as the Chair and Chair-Elect of the Family Law Section, respectively) formed a Palimony Sub-Committee comprised of themselves, Francesca Blanco, Cheryl Connors, Bonnie Frost, Sheryl Seiden, Amanda Trigg and Rebekah Whitmarsh. The Committee undertook the preparation of a comprehensive palimony statute in lieu of an amendment to the statute of frauds. Ms. Connors and Ms. Whitmarsh provided the committee with extensive research on the status of palimony laws throughout the United States, as well as a full recital of the case law in New Jersey which effected palimony claims as of 2009.
On May 6, 2009, representatives from the Family Law Section met with the staff of Assemblywoman Greenstein to voice opposition to A3833. During that meeting, Charles Vuotto, Edward O’Donnell, Bonnie Frost and Amanda Trigg also sought support from Asw. Greenstein for a comprehensive palimony statute in lieu of an amendment to the statute of frauds. At the FLEC meeting on June 9, 2009, members of the Executive Committee were apprised of this meeting and the status of the research by the Palimony sub-committee. Discussions continued at the FLEC meeting on September 8, 2009. At that time, FLEC voted to instruct the palimony committee to draft a statute which reflected the following:
· It shall be a rebuttable presumption that there can be no palimony cause of action without cohabitation;
· A claimant of palimony must establish the claim by a Preponderance of the Evidence;
· The duration of a relationship should be included among the factors for the determination of a palimony claim but it should not be a requirement that the relationship be “long term”;
· Available remedies should include a lump sum payment or periodic payments.
Thanks to the Palimony sub-committee and especially the continued drafting efforts of Cheryl Connors and Rebekah Whitmarsh, in October 2009, the Family Law Section approved a proposed palimony statute to be circulated to the members of the New Jersey Legislature as an alternative to S2091 and A3833. At its October meeting, the NJSBA Board of Trustees voted overwhelmingly to endorse the Section's efforts to develop and present an alternative to S2091 which would add palimony to the statute of fraud requirements. During the course of the discussion, the Board expressed its deep appreciation to the Section for its quick turn around and the quality of the work presented.
Soon thereafter, on November 30, 209, Assemblywoman Linda Stender and Assemblyman Michael Carroll, with Assemblyman John S. Wisniewski as co-sponsor, introduced A4296. Like S2091 and A3833, A4296 sought to require that palimony agreements be in writing and added the additional mandate that “no such written promise is binding unless it was made with the independent advice of counsel for both parties” to mirror the amendment to S2091. The Assembly Judiciary Committee scheduled A3833 and A4296 for review and vote on December 3, 2009.
Senator Scutari agreed to participate in a conference call concerning S2091 on December 2, 2009. During that call, the Senator held firm to his intention to secure the passage of this legislation based in part upon his interpretation that the current case law on palimony actually creates rights tantamount to common law marriage. Since New Jersey law expressly prohibits common law marriage, the Senator opined that the law should likewise prohibit palimony claims and permit only written contracts for support between non-married persons.
In anticipation of the meeting of the Assembly Judiciary Committee on December 3, 2009, where Todd Sidor of the NJSBA and Amanda Trigg planned to speak in opposition to A3833, the NJSBA wrote to members of the Assembly Judiciary Committee to share our proposal for an alternative approach: a comprehensive statute to establish and define palimony claims under New Jersey law which would actually circumscribe the scope of claims, compared to the existing case law.
Assemblywoman Stender presented A4296 to the Assembly Judiciary Committee and asked for its vote to release the bill from committee. The Committee then heard from members of the public who supported the legislation and finally, from the NJSBA. Although the Committee acknowledged that it knew of the existence of the proposed palimony bill supported by the NJSBA, and the members listened politely to the positions that Amanda offered in opposition to A4296, it voted unanimously to release the bill from Committee and then to present the legislation to the Assembly.
As of December 17, 2009, the Assembly’s vote on A4296 had been tabled until January 2010. The Family Law Section, through the NJSBA, continues to advocate for consideration of its proposed palimony statute instead of the drastic amendment to the statute of frauds.
Please be advised that the palimony bill (A4296) is scheduled for vote in the Assembly on Jan 11.
Over the past nine months, representatives of the Family Law Section have actively opposed legislation which would amend the Statute of Frauds to require that all palimony agreements be set forth in writing. In fact, this Section’s opposition to the legislation dates back to the inception of the legislation in 2004.
In 2004, Assemblyman Michael Patrick Carroll (District 25 -Morris), put forth a proposed amendment to the Statute of Frauds which sought to add, as a non-enforceable agreement, “A promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination.” The express purpose of the legislation was to overturn the ruling in Kozlowski v. Kozlowski, 80 N.J. 378 (1979), which authorized enforcement of a promise of lifetime support by one cohabitant to another in a marital-like relationship, if one of the partners was induced to cohabit by the promise. The court held that the right to such support is found in contract principles and that the contract may be either express or implied. The bill was referred to the Assembly Judiciary Committee on May 10, 2004. On March 6, 2006, identical legislation, A2796, was again introduced by Asm. Carroll and again referred to the Assembly Judiciary Committee.
Over two years passed before Senators Nicholas P. Scutari and Gerald Cardinale introduced S2091 in the Senate on October 2, 2008, reflecting a proposal identical to the prior legislation to amend the Statute of Frauds. The Senate referred S2091 to its Judiciary Committee immediately; the Senate Judiciary Committee released the bill on February 9, 2009 with an amendment to require that written palimony agreements would not be enforceable unless supported by independent legal advice to both parties. Thereafter, Asm. Carroll again introduced the proposed amendment to the Statute of Frauds on (labeled as A3833) on March 9, 2009, where it was again referred to the Assembly Judiciary Committee.
The Executive Committee of the Family Law Section reviewed S2091 on February 19, 2009, voting to oppose the legislation with high priority. The Legislation sub-Committee promptly conveyed the section’s position to the NJSBA. Nonetheless, on March 16, 2009, the Senate passed S2091 with a vote of 21-14. Roll call for the voting can be viewed at http://www.njleg.state.nj.us/bills/BillView.asp.
In April 2009, Edward O’Donnell and Charles Vuotto (then serving as the Chair and Chair-Elect of the Family Law Section, respectively) formed a Palimony Sub-Committee comprised of themselves, Francesca Blanco, Cheryl Connors, Bonnie Frost, Sheryl Seiden, Amanda Trigg and Rebekah Whitmarsh. The Committee undertook the preparation of a comprehensive palimony statute in lieu of an amendment to the statute of frauds. Ms. Connors and Ms. Whitmarsh provided the committee with extensive research on the status of palimony laws throughout the United States, as well as a full recital of the case law in New Jersey which effected palimony claims as of 2009.
On May 6, 2009, representatives from the Family Law Section met with the staff of Assemblywoman Greenstein to voice opposition to A3833. During that meeting, Charles Vuotto, Edward O’Donnell, Bonnie Frost and Amanda Trigg also sought support from Asw. Greenstein for a comprehensive palimony statute in lieu of an amendment to the statute of frauds. At the FLEC meeting on June 9, 2009, members of the Executive Committee were apprised of this meeting and the status of the research by the Palimony sub-committee. Discussions continued at the FLEC meeting on September 8, 2009. At that time, FLEC voted to instruct the palimony committee to draft a statute which reflected the following:
· It shall be a rebuttable presumption that there can be no palimony cause of action without cohabitation;
· A claimant of palimony must establish the claim by a Preponderance of the Evidence;
· The duration of a relationship should be included among the factors for the determination of a palimony claim but it should not be a requirement that the relationship be “long term”;
· Available remedies should include a lump sum payment or periodic payments.
Thanks to the Palimony sub-committee and especially the continued drafting efforts of Cheryl Connors and Rebekah Whitmarsh, in October 2009, the Family Law Section approved a proposed palimony statute to be circulated to the members of the New Jersey Legislature as an alternative to S2091 and A3833. At its October meeting, the NJSBA Board of Trustees voted overwhelmingly to endorse the Section's efforts to develop and present an alternative to S2091 which would add palimony to the statute of fraud requirements. During the course of the discussion, the Board expressed its deep appreciation to the Section for its quick turn around and the quality of the work presented.
Soon thereafter, on November 30, 209, Assemblywoman Linda Stender and Assemblyman Michael Carroll, with Assemblyman John S. Wisniewski as co-sponsor, introduced A4296. Like S2091 and A3833, A4296 sought to require that palimony agreements be in writing and added the additional mandate that “no such written promise is binding unless it was made with the independent advice of counsel for both parties” to mirror the amendment to S2091. The Assembly Judiciary Committee scheduled A3833 and A4296 for review and vote on December 3, 2009.
Senator Scutari agreed to participate in a conference call concerning S2091 on December 2, 2009. During that call, the Senator held firm to his intention to secure the passage of this legislation based in part upon his interpretation that the current case law on palimony actually creates rights tantamount to common law marriage. Since New Jersey law expressly prohibits common law marriage, the Senator opined that the law should likewise prohibit palimony claims and permit only written contracts for support between non-married persons.
In anticipation of the meeting of the Assembly Judiciary Committee on December 3, 2009, where Todd Sidor of the NJSBA and Amanda Trigg planned to speak in opposition to A3833, the NJSBA wrote to members of the Assembly Judiciary Committee to share our proposal for an alternative approach: a comprehensive statute to establish and define palimony claims under New Jersey law which would actually circumscribe the scope of claims, compared to the existing case law.
Assemblywoman Stender presented A4296 to the Assembly Judiciary Committee and asked for its vote to release the bill from committee. The Committee then heard from members of the public who supported the legislation and finally, from the NJSBA. Although the Committee acknowledged that it knew of the existence of the proposed palimony bill supported by the NJSBA, and the members listened politely to the positions that Amanda offered in opposition to A4296, it voted unanimously to release the bill from Committee and then to present the legislation to the Assembly.
As of December 17, 2009, the Assembly’s vote on A4296 had been tabled until January 2010. The Family Law Section, through the NJSBA, continues to advocate for consideration of its proposed palimony statute instead of the drastic amendment to the statute of frauds.
Subscribe to:
Posts (Atom)
