In Kathleen M. Moynihan v. Edward J. Lynch (A-64-20/085157) (Decided March 8, 2022), the Supreme Court of New Jersey held that N.J.S.A. 25:1-5(h)’s provision compelling parties to seek the advice of counsel — and therefore retain counsel — before signing a palimony agreement violates the substantive due process guarantee of the New Jersey Constitution.
Facts of Moynihan v. Lynch
Plaintiff Kathleen Moynihan and defendant Edward Lynch were involved in a long-term “marital-style relationship.” The parties met in 1997 and developed a romantic relationship. In the beginning, Lynch occasionally slept at Moynihan’s home. In 2000, Moynihan and her children moved to a home in Bordentown. Moynihan made the down payment on the home, which Lynch purchased with a mortgage and titled in his name. The parties shared the financial responsibilities of the home. Over time, Lynch moved into the home and became more active in the life of the Moynihan family. The parties discussed marriage but never wed.
In 2007, Lynch placed the title of the home into a trust and named Moynihan as the beneficiary upon his death. In 2013, Lynch converted his ownership of the home into a joint tenancy with rights of survivorship, naming himself and Moynihan on the deed. Sometime between 2012 and 2014, the parties entered into a handwritten agreement drafted by Lynch, which provided that, within five years of vacating their jointly owned home, Lynch would pay off the mortgage, deed it over to Moynihan, pay her $100,000, and, within two years of vacating the home, pay the real estate taxes on the property for two years. In 2015, the parties parted ways, and Lynch refused to abide by their written agreement.
Moynihan filed a complaint seeking enforcement of the written agreement and an alleged oral palimony agreement that she claimed the parties had entered before the Legislature in 2010 amended N.J.S.A. 25:1-5 to include subparagraph (h). That amendment mandated that palimony agreements be reduced to writing and “made with the independent advice of counsel.” She challenged N.J.S.A. 25:1-5(h) on constitutional grounds and urged enforcement as a typical contract; alternatively, she sought enforcement of the agreement on equitable grounds. Lynch denied the existence of an oral palimony agreement and asserted that the written agreement was unenforceable because the parties did not receive the independent advice of counsel before entering it.
The trial court found that N.J.S.A. 25:1-5(h)’s attorney-review requirement did not contravene Moynihan’s constitutional rights. The court determined that the written agreement was not a palimony agreement but more akin to an “orderly removal” in a landlord/tenant matter and enforced the agreement. The court also found that the couple did not enter an enforceable oral palimony agreement. The Appellate Division reversed, but it upheld the finding that the parties did not reach an oral palimony agreement. The Court granted certification
NJ Supreme Court’s Decision in Moynihan v. Lynch
The New Jersey Supreme Court reversed the judgment of the Appellate Division enforcing the written agreement; however, it affirmed its judgment that sufficient credible evidence in the record supports the trial court’s finding that the parties did not enter an oral palimony agreement.
“We agree with the Appellate Division that Lynch and Moynihan signed a written palimony agreement. We also find that N.J.S.A. 25:1-5(h) did not retrospectively alter a preexisting contract and therefore did not constitute legislation impairing a contract,” Justice Barry T. Albin wrote. “We hold, however, that N.J.S.A. 25:1-5(h)’s attorney-review requirement contravenes the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution.”
As the Court explained,the Statute of Frauds generally requires that certain agreements be signed by the party against whom enforcement is sought. In 2010, the New Jersey Legislature amended the Statute to include palimony agreements. Prior to the amendment, New Jersey’s common law recognized that an unwed couple could enter into a palimony agreement and courts enforced oral palimony agreements involving “marital-type relationships” where one party induced the other to enter or remain in the relationship by a promise of support. Unlike other provisions of the Statute of Frauds, N.J.S.A. 25:1-5(h) includes a requirement that each party to the palimony agreement secure the “independent advice of counsel.”
As Justice Albin emphasized, no other law in this state conditions enforceability of an agreement between private parties on attorney review. Furthermore, none of the jurisdictions that enforce palimony agreements mandate that the parties consult with attorneys before entering into such agreements.
“N.J.S.A. 25:1-5(h) compels individuals to retain attorneys before they can enter a palimony agreement — a contract no more complicated than other family law or commercial contracts that do not require attorney review,” Justice Barry Albin wrote. “N.J.S.A. 25:1-5(h)’s attorney-review requirement interferes with an individual’s right of autonomy, singles out written palimony agreements from among all other agreements for differential treatment, and has no parallel in the legislative history of this state.”
The New Jersey Supreme Court went on to strike down the attorney-review requirement, concluding that it infringes on the right of personal autonomy — the right to make decisions without the compelled participation of an attorney.
“The State generally cannot compel a person to accept counsel in a criminal or civil case. Because individuals generally have a constitutional right to represent themselves in our criminal and civil courts, it follows that generally they can enter a contract no more complex than others without an attorney. The attorney-review requirement also unduly burdens those who cannot afford counsel — those with little or no income — denying them the opportunity to enter contracts available to their more affluent counterparts,” Justice Albin wrote. “No sound reason has been given for the public need to compel attorney review of palimony agreements to the exclusion of all other agreements. We therefore conclude that N.J.S.A. 25:1-5(h)’s provision compelling parties to seek the advice of counsel — and therefore retain counsel — before signing a palimony agreement violates the substantive due process guarantee of our State Constitution.”
The New Jersey Supreme Court went on to strike down the attorney-review requirement in N.J.S.A. 25:1-5(h). “In light of the nature and importance of the right of willing parties to enter palimony agreements without the burden of attorney participation, we conclude that the imposition of an attorney review requirement is an arbitrary government restriction that contravenes Moynihan’s substantive due process rights,” Justice Albin wrote.
Under the court’s decision, alimony agreements must still be in writing and signed, if not by both parties, at least by the party against whom the agreement is to be enforced. The New Jersey Supreme Court enforced the palimony agreement as written in this case. It further found sufficient credible evidence in the record supports the trial court’s determination that Lynch did not make an explicit or implied oral promise to support Moynihan for life. Accordingly, the parties did not have an oral palimony agreement before 2010.