Since the early 1970s, there has been a dramatic increase in the number of people who live together without getting married. Despite this trend, unmarried couples do not have the same rights and protections as married couples. But courts have slowly begun to recognize that, in certain situations, an unmarried person may have a right to get financial support from a former partner after their relationship ends.

In cases where judges order support for an unmarried partner, they have found that one partner promised to support the other partner in return for being taken care of while they lived together. In all reported cases so far, support has been provided by a male partner to a female partner. Courts have treated these situations as if the parties had a contract, not like marriage, where the right to support is based on an obligation between the partners. Under the law, the duty to support one another still belongs only to spouses in a legal marriage.

There was a time when living together in a long-term relationship and acting as husband and wife was considered under the law to be equal to marriage. That was called common law marriage, which was abolished by statute in New Jersey in 1939. Since common law marriage ended, there are no longer any laws with guidelines for determining whether support should be awarded from one unmarried partner to another when their long-term relationship ends.

Alimony vs. Palimony

Alimony
For married people, there are plenty of guidelines for determining when a court should order financial support (alimony) and division of property. At the time of divorce or separation, a spouse in need of financial support has the right to ask the other spouse for alimony or spousal support. The law states that the following factors should be considered when making a decision about whether or not alimony will be ordered:

• The length of the marriage;
• The financial needs of each spouse and the ability of each to pay;
• The age and the physical and emotional health of both parties;
• The standard of living established during the marriage and each partner’s ability to keep a standard of living reasonably close to that same standard;
• Each party’s ability to hold a job or earn money;
• The length of time it has been since the party seeking money has held a paying job;
• The child care responsibilities of the party asking for monetary support;
• Each party’s financial and other contributions to the marriage;
• Other income available to either party;
• The possible tax-related effects of any alimony awarded;
• The division of marital property; and
• Any other considerations that the court feels are relevant.

Each spouse also has the right to ask that any property gained during the marriage be divided between them. This is called equitable distribution. Equitable distribution decisions are based on rules clearly stated in the law.

Palimony
Palimony is the term that is used to describe the support that an unmarried person may request from his or her partner when the relationship between them comes to an end. Since living together without legally marrying has become more common, there has been an increasing number of cases dealing with the subject of palimony filed in the New Jersey courts. Because there are no written laws on the subject, the decisions made by the courts provide the only guidance as to how and when an unmarried person may be successful in getting support from his or her partner. The cases decided and reported so far make it clear that:

• To get support as an unmarried partner, you cannot base your request on a claim that your partner has a duty to support you.
• You cannot get support money because your partner promised to marry you and then did not marry you. (This type of claim was outlawed many years ago in New Jersey.)
• You cannot recover money from your partner if your relationship with your partner was based solely on an agreement to perform sexual services in return for money (because this type of agreement is like prostitution, which is illegal).
• Most often, one of the cohabiting unmarried partners promises or agrees to support the other partner for life.
• Usually one partner (generally, the male) invites the other partner (generally, the female) to perform a variety of “services” including homemaking, meal preparation, providing care when he is sick, and acting in the role of social assistant/partner for him. In return, he promises to support her for life.
• Often, the plaintiff (the person asking for support) and defendant (his or her partner) lived together for a long time (usually between 15 and 20 years).
• Usually, a condition of getting support for life is that the female partner must live with the male partner in a marriage-like relationship.
• Usually, the plaintiff’s primary goal in living with the unmarried partner is the promise of financial support for life.

Some of the plaintiffs seeking support in these cases continued to work after beginning to live with their partners. However, none of them made enough money to support themselves without the help of the other partner’s income. The courts make it clear that the important consideration in palimony cases is not whether or not the financially dependent partner has a job, but rather whether or not that partner can support herself on her own. Not surprisingly, in all of the major cases where the courts ordered palimony, the financially dependent partner was suing a partner who had substantial wealth and income.

Other Differences between Alimony and Palimony

Another clear difference between the way requests for alimony and palimony are treated is that palimony is awarded in the form of a lump sum payment, and alimony is more often ordered as ongoing payments made on a regular basis such as every week, every two weeks, or once a month. The main reason that courts treat the two types of support differently is again to distinguish “live-in” relationships from legal marriages.

In palimony cases, the amount of money owed to the financially dependent partner is based on the promise or contract that was made between the partners. The sum of the support awarded is normally the amount determined to be necessary to support the plaintiff for the rest of her life, beginning from the time of the breakup of the relationship for as long as she might be expected to live. (There are special charts that allow experts to calculate the average life expectancy of a person of the plaintiff’s age.)

Unlike a divorce action, a palimony lawsuit can be filed only to recover money, not property. Division of property is only allowed in the context of a legal marriage.

Palimony Even After Death

The right to palimony apparently survives the death of the partner who made the contract or promise. A recent court decision held that an unmarried partner could recover money from the estate of her deceased male partner who died without preparing a will. The court found that the promise that he had made to support her for life was to be honored with funds from his estate, just like any other unpaid debt left behind after his death.

How to File and Prove a Palimony Case

A palimony lawsuit is really more like a lawsuit for the breach of a contract than a lawsuit for divorce. In contract lawsuits, plaintiffs are asking for money damages. Lawsuits for money damages are normally filed in the Law Division of the Superior Court. However, the Family Part is now the proper place to file a lawsuit for palimony. This is because a palimony lawsuit arises out of a “family-type” relationship, and it is considered best to have this type of a case decided by a judge with expertise in family law.

If palimony requests are made after a partner dies, the case may need to be filed in the probate part of the Superior Court. This is where cases involving the estate of a person who has died are filed. If this happens, the judge assigned to the case has the power to simply transfer the case to the family court.

There are no specific court rules or statutes that provide directions as to what a written complaint in a palimony lawsuit should look like. However, the complaint should contain the following information:

• Enough facts to show that the plaintiff and defendant have been living together for a reasonably long time;
• A description of the living arrangements between the parties, including a list of the types of services that the plaintiff performed for the defendant;
• A description of the promise or contract made to support the plaintiff for life;
• An explanation of how the promise and/or contract was broken; and
• A request for financial or monetary support.

At the trial, the plaintiff should be able to prove that there was a contract or agreement with his or her partner, based solely on his or her own testimony. The contract does not have to be in writing. In the major reported cases decided so far, the court most often relied on the testimony of the plaintiff and defendant. The fact that none of the plaintiffs were able to produce a written agreement as evidence that a contract existed did not prevent the court from finding that there was a contract between the partners.

The courts reviewing lawsuits for palimony have created some guidelines, but the factors necessary to prove a palimony case are still not completely clear. It is likely that, in cases with facts similar to those described above, the court may find an enforceable contract between the parties and allow an unmarried partner to recover money as compensation for the breach of contract that resulted when the relationship ended.

This article appeared in the December 2003 edition of Looking Out for Your Legal Rights^®.