You Won’t Get Palimony By Suing – And Suing – And Suing

In a late July decision, a NJ judge confirmed that palimony arrangements must be in writing in order to be enforceable.

The NJ palimony law says:

“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.”

Sook Hee Lee and Jonathan Kim started a relationship in June 2010, six months after the palimony law was passed. They never married, had one child and split up in June 2012. Ms. Kim later filed for child support and palimony. During the litigation, Ms. Kim filed, withdrew, and amended numerous legal papers in both federal and state courts. She also brought claims against the State Attorney General for supposed violations of her constitutional rights. She claimed that the palimony law infringed on her free speech, her right to privacy, her right to enter into a contract and that she was part of a “protected class.”

The judge spent several pages in his decision referring to numerous technical grounds on which the entire case could be dismissed – with prejudice (never to be reinstated). But he still decided to discuss the constitutionality of the palimony law. “[T]he Court believes that it is in the interest of justice to address a possible violation of the New Jersey Constitution. It would be contrary to the notions of justice to bar a litigant from asserting a potential constitutional right due to their attorney’s inability to conform to procedural rules …,” he wrote.

Then, in one fell swoop, the judge essentially rejected all of Ms. Lee’s claims. “Ms. Lee failed to substantiate her idea that her due process rights are being violated. The Court does not find that entering into an oral palimony agreement is a fundamental right. Additionally, entering oral palimony agreements are not deeply rooted in the traditions, history and conscience of the people of New Jersey. The Court reiterates that the palimony law does not interfere with the parties’ liberty to be in a relationship or to enter into a contract with each other, but rather, the legislature merely sought to require the contracts to be in writing and to have been reviewed by counsel. As for the aforementioned argument that unwed mothers are being victimized and denied due process, this is also unpersuasive. The right of child support belongs to the child. This right is not affected by the marital status of the parties. Ms. Lee is not entitled to support for her sole benefit simply by virtue of having mothered a child with Dr. Kim.”

The court also found that there was no clause or protection that infringed on her constitutional rights, including the right to enter into a contract. The palimony law requiring seeking the advice of counsel and stipulating the agreement in writing is valid law.

In addition, the judge was not happy with the mother’s behavior: “Ms. Lee pursued her frivolous claims in a relentless and piecemeal manner. Ms. Lee has brought Dr. Kim to Court on three separate [lawsuits] for palimony. Ms. Lee’s litigation strategy of commencing one action while another one is pending, and amending Complaints without leave of the Court after an Answer has been filed, is a clear showing of disrespect towards practices and procedures established to guide litigation. Ms. Lee has wasted the Court’s time and Dr. Kim’s time and money during two years’ worth of fruitless and frivolous palimony litigation stemming from a two year casual dating relationship which post-dated the enactment of the palimony law. The improper and inefficient course of this case is especially offensive in light of the fact that Ms. Lee has had the same counsel since the first Complaint was filed in Superior Court under FM-02-602-15. Had Dr. Kim sought sanctions, the Court would have strongly considered granting same.”

This case is a lesson that palimony claims for relationships after January 2010 require both a written agreement and consultation with an attorney. It also is a caution to litigants not to “play games” with the Courts. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.