New Jersey Family Court Judge Affirms Palimony Agreements Must be in Writing

A Bergen County Family Court Judge recently ruled against the constitutional challenge of a New Jersey woman who claimed that the State’s palimony law violated her constitutional rights. The Judge affirmed the State’s policy that palimony agreements must be put in writing and reviewed by independent counsel in order to be considered valid.

The aforementioned ruling was released on Friday, July 22, in the case of Lee v. Kim. The plaintiff in this lawsuit, Sook Hee Lee, had a relationship with the defendant, Dr. Jonathan Kim, which lasted from June 2010 until June 2012. During this time, Lee gave birth to a child, to whom she claims Kim is the father. Whether or not Kim submitted to a paternity test to confirm the paternity of the child remains unknown. According to Lee, Kim had orally entered into a palimony agreement with her during their relationship, in which he agreed to provide for her financially.

Under current New Jersey law, palimony agreements must meet a number of criteria in order to be considered valid. First, a palimony arrangement does not require cohabitation. The couple must only be engaged in a “marital-type relationship.” Although palimony agreements previously applied to any “promise to support either expressed or implied,” the requirements for these agreements were made increasingly strict in 2010 with the enactment of New Jersey State Assembly Bill 2296. The Bill amended New Jersey Statute Section 25:1-5, “Promises or Agreements not Binding unless in Writing.”

With regard to palimony, it states the following:

“No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized. [Included under this statute is] a promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless:

• It was made with the independent advice of counsel for both parties; or
• A written statement by both parties that they are knowingly, willingly and voluntarily waiving the advice of counsel; and
• The written promise is notarized, signed, and sworn.

Notably, the requirements for a valid palimony agreement are very similar to the necessary criteria for a valid prenuptial or postnuptial agreement.

In this case, Lee’s argument hinges upon the constitutionality of New Jersey’s current palimony law. Specifically, she claimed that it violated her rights to freedom of speech, privacy, and due process. Lee has brought these claims before several New Jersey courts in recent years, including the U.S. District Court and the U.S. Court of Appeals for the Third Circuit, all of whom rejected her lawsuit.

With the most recent decision, Bergen County Superior Court Judge Terry Bottinelli stated: “The provision of the palimony law which requires a contract to be in writing allows for clear and unequivocal interpretation and allows for the court to dispense justice in a concise manner. Ms. Lee failed to substantiate her due process rights are being violated…The court does not find that entering into an oral palimony agreement is a fundamental right.”

As Judge Bottinelli intimated in his ruling, an oral palimony agreement would be extremely difficult to prove in a court of law. The State combats this “my word versus yours” situation by requiring those who seek palimony agreements to create and enter into legally-binding contracts. Palimony represents yet another issue subsumed under New Jersey family law in which the rule “get it in writing” prevails. Our NJ divorce and family law attorneys always encourage clients to obtain documentation of any and all relevant agreements, conversations, etc., because these documents may become invaluable when protecting your future interests.

For additional information pertaining to this matter, access the following article: Constitutional Challenge to NJ Palimony Law Rejected