Tuesday, March 8, 2022

The Right To Not Have Counsel

The New Jersey Supreme Court has held that a palimony agreement survives notwithstanding the non-compliance with a statutory "attorney review" requirement

Kathleen Moynihan and Edward Lynch were involved in a long-term “marital-style relationship.” Anticipating the potential dissolution of that relationship, they signed and notarized a written agreement that finalized the financial obligations each owed to the other. That palimony agreement 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 pay the real estate taxes on the property for two years after his departure.

They met when she was a flight attendant and he a pilot for U.S. Airways. They flew together for many years without ever tying the knot. 

From the court's head notes

The palimony agreement, as written and signed, without the attorney review requirement, is enforceable. That portion of N.J.S.A. 25:1-5(h), which imposes an attorney-review requirement to enforce a palimony agreement, contravenes Article I, Paragraph 1 of the New Jersey Constitution. The parties did not enter an oral palimony agreement.

...The imposition of an attorney-review requirement is an arbitrary government restriction that contravenes Moynihan’s substantive due process rights. The Court strikes down the attorney-review requirement in N.J.S.A. 25:1-5(h). Palimony 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 -- just like all agreements enumerated in the Statute of Frauds. The Court enforces the palimony agreement as written in this case. (pp. 37-38)

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. Therefore, the parties did not have an oral palimony agreement before 2010. Because the written palimony agreement is enforceable, the Court does not address any of the equitable remedies pressed by Moynihan for enforcement of that agreement. (pp. 38-40)

The right to not have counsel forced on a person

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. 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.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/03/the-new-jersey-supreme-court-found-that-a-palimony-agreement-survives-notwithstanding-the-non-compliance-with-a-attorney-revi.html

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