Palimony Agreement must be in Writing - Concern for Caregiving Couples

My colleague, Judson Stein, Esq. has brought be my attention a new law that came into being in the last days of the Corzine Administration requiring that in order for a palimony agreement to be enforceable it must (1) be in writing, and (2) be executed with the independent advice of legal counsel.

 Stein advises in his announcement:

“Palimony” involves the right of an unmarried participant to a marriage-like relationship to seek support benefits when the relationship ends, whether because the couple breaks up, e.g., due to loss of affection or by reason of the death of one of the participants. Case law in New Jersey had allowed such claims of support – even if based only on implicit understandings derived from the circumstances of the relationship.

Now, as a result of the new law, such a claim will not be legally enforceable unless it is set forth in a written agreement made with the independent advice of counsel. Further, as the new law applies to those in a “non-marital personal relationship”, and as the new law makes no mention of civil unions or domestic partnerships, the impact of this new law on parties to civil unions or domestic partnerships cannot be stated with certainty.

Given that many couples are not legally married (and, New Jersey does not recognize common law marriage), it is now more important than ever for unmarried couples to consider, and make provisions for, the financial consequences of the termination of their relationship – whether while both are living or when one dies. This is especially true when one of the couple is more financially dependant than the other or when their finances are intertwined.

I also find this of particular concern for caregivers.  It is not uncommon for elderly couples to be in a relationship but not married.  One reason to avoid later life marriages is that spouses are fully responsible to spend their assets towards a spouses care before Medicaid will pay for long term care.   However, a long term couple may make promises to each other with regard to sharing in the estate for caring for a person.  These agreements must now be in writing with the advice of counsel to be enforceable.  Your typical couple will not be aware of this and I question if this law could now hurt caregivers since their agreements will normally be verbally and thus while morally binding, not legally.