In New Jersey, the Statute of Frauds N.J.S.A. 25:1-5 presently requires the following when pursuing a claim for palimony:
“Promises or agreements not binding unless in writing. 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:
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.”
While the Statute of Frauds requires that a person pursuing a case of palimony against another prove that there was an agreement to provide support that was in writing and that the parties had the advice of counsel, there are cases that address partial or full performance as an exception to the Statute of Frauds. See Lahue v. Pio Costa, 263 N.J. Super. 575 (App. Div. 1993) cert. denied 134 N.J. 477 (1993); Crowe v. De Gioia, 203 N.J. Super. 22 (App. Div. 1985), affirmed by 102 N.J. 50 (1986) ; Klockner v. Green, 54 N.J. 230 (1969). Therefore, courts will enforce agreements where the terms of the contract and performance thereof can be established by clear, definite, and unequivocal evidence. Delnero v. Serra, 2 N.J. Super. 350, 352 (Ch.Div. 1949); Lahue v. Pio Costa, 263 N.J.Super. 575, 599-600 (App. Div. 1993).This exception to the Statute of Frauds requirements should apply to palimony agreements.
In addition to the part or full performance arguments, promissory estoppel can also be applied where application of the Statute of Frauds would result in a “hardship or injustice if such a promise were not enforced.” Pop’s Cones, Inc. v. Resorts Int’l Hotel, Inc., 307 N.J. Super. 461, 469 (App. Div. 1998). To assert a promissory estoppel claim, the movant must demonstrate evidence of facts establishing the four elements: (1) a clear and definite promise by the promisor; (2)an expectation of reliance thereon; (3) reasonable reliance on the promise, and (4) a detriment due to reliance upon that promise.
Whether these or other equitable arguments will be successful in the context of palimony agreements or in your case is not clear, (see Maeker v. Ross, 430 N.J. Super. 79, 82-83 (App. Div. 2013)) as there is a lack of definitive case law in the area of Palimony and each case is distinguishable by its own set of facts, however, it may be argued that these well settled equitable principles should apply to all agreements including agreements between persons to support one another especially where there has been detrimental reliance or part performance of these promises.
Ask your attorney if the facts of your case can be considered an exception to requirement of a written agreement. Every case is different and your attorney is likely in the best position to advise you as to your likelihood of prevailing going forward.
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