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Should This Agreement be Enforced?

Should a written agreement promising support between two unmarried lovers be enforced when entered into without legal representation?


Our New Jersey Supreme Court will be deciding if a written agreement between two unmarried lovers to support one another should be enforced even when there was no legal representation when the agreement was signed?

The balance between love or money

While the applicable New Jersey statute clearly provides that “…no such written promise is binding unless it is made with the independent advice of counsel for both parties”, the New Jersey Supreme Court has recently granted certification to consider whether this requirement, under certain circumstances, should be excused; whether the written agreement between Kathleen M. Moynihan and Edward J. Lynch should be enforced even though neither of them had an attorney.

Palimony Agreement?

The Appellate Division decision to be reviewed by our Supreme Court reversed the trial court finding that the written agreement “lacked an essential of a palimony agreement” and, as such, could be enforced without legal representation. After finding that the written agreement included a “promised by one party to a non-marital personal relationship to provide support or other consideration for the other party”, the Appellate Division refused to enforce the “palimony agreement” between Ms. Moynihan and Mr. Lynch because neither was represented by counsel when they entered into their agreement. The Appellate Division accordingly strictly enforced the statutory language and, in so doing, refused to enforce the written agreement without legal representation.

Appeal to the New Jersey Supreme Court

Ms. Moynihan’s appeal to our Supreme Court is founded upon the three arguments:

  1. the statutory requirement that palimony agreements be reviewed by independent legal counsel to be enforceable is unconstitutional;
  2. promissory estoppel and partial performance should be recognized as valid defenses that can remove the “legal representation requirement” when necessary to avoid a manifest injustice; and
  3. the existence of an oral agreement that pre-dated the statutory requirement of a writing and legal representation should render the subsequent written agreement enforceable .

Our Supreme Court will accordingly now be able to clarify the law of palimony agreements as more and more couples choose, for whatever reason, not to legally marry their “significant others” and/or the “other parent” of their child(ren).

The time has accordingly come for additional guidance from our Supreme Court to address the “real life impact” that “palimony agreements” have had and/or will continue to have on couples and parents who, for whatever reason, choose not to marry one another.

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