Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, February 26, 2006

Case Law Development: New Jersey Court Rejects Mistress Palimony Claim

A New Jersey appeals court ruled Thursday that a woman who bore two sons to a multi-millionaire does not have a palimony claim to his estate beyond a $100,000 bequest. She was also permitted to occupy a house owned by the multi-millionaire until their surviving son turns 25. Their son received $1.5 million and the house.

The deceased left an estate valued between $21 and $36 million when he died in 2000. He had been married three times and at the time of his death, had been married to his third wife for about thirty years. Although separated from his third wife for many years, the deceased  had indicated prior to his death that he did not wish to go through a divorce because it would result in his wife receiving one-half of their assets, which he believed would disrupt his business and real estate interests. The deceased met his mistress in January 1990 and two children were later born of the relationship. Their relationship continued for at least ten years.

The Court of Appeals said that the “critical issues to be determined in the palimony trial were whether plaintiff and [the deceased] lived together in a marital type relationship and whether [the deceased], either expressly or impliedly,” promised the mistress he would provide support for her for the rest of her life. If those questions were answered in the affirmative, then, said the court, “it would then be necessary to determine whether plaintiff gave adequate consideration in exchange for the promise and the amount required in a present value lump sum payment” to satisfy the deceased’s obligation.

In rejecting the palimony claim, the court initially summarized the law followed by New Jersey courts: “The fundamental principle upon which courts decide palimony cases is that “the formation of a marital-type relationship between unmarried persons may, legitimately and enforceably, rest upon a promise by one to support the other.” In re Estate of Roccamonte, 174 N.J. 381, 392 (2002). “[T]he right to support in that situation does not derive from the relationship itself but rather is a right created by contract. A palimony contract may be oral and may be either express or implied.” It said that “A critical element of a palimony claim is cohabitation for a significant period of time” and observed that another panel of the court had recently reiterated that failure to prove cohabitation in a marital-type relationship is fatal to a palimony claim.

The apparent key to court rejecting the palimony claim rested upon the decision by the deceased to insist upon separate households for himself and plaintiff. The deceased and the mistress “had a romantic relationship,” said the court, however, the deceased “continued, by choice, not necessity, to live separately and spend some limited time with her occasionally at a home he provided for her, at one of his homes, or on an occasional trip.” The court emphasized that “a palimony cause of action continues to require actual cohabitation in a marital-like relationship. That continues to require living together in a household or households under the same roof or roofs on a regular basis as dictated by the circumstances.” McDonald v. Mavety, February 23, 2006 (reo). Download here the slip opinion, McDonald v. Mavety.pdf

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