Is a Party Entering Into a Palimony Agreement Required to Secure the Independent Advice of Counsel?

By: Kevin W. Ku, Esq.

On March 8, 2022, the Supreme Court of New Jersey addressed the statutory requirement pursuant to N.J.S.A. 25:1-5(h) that parties to a palimony agreement must confer with independent counsel for the agreement to be enforceable in the case of Kathleen Moynihan v. Edward Lynch, 2022 N.J. LEXIS 188 (2022). Specifically, the Supreme Court held that the attorney-review requirement was unconstitutional as it violates an individual’s right to represent themselves and to create their own contracts.

In Moynihan, the parties were in a long-term relationship that the Supreme Court defined as a “marital-style” relationship.  Approximately fifteen years after meeting, they entered into a handwritten agreement that was drafted by Mr. Lynch to address various financial obligations that each party would owe to the other should their relationship end.  The agreement was signed by the parties and notarized, but neither of them sought the advice of independent counsel.  A few years later when their relationship ended, Mr. Lynch refused to abide by their written agreement which resulted in Ms. Moynihan filing an application with the court to enforce it. As part of her application, Ms. Moynihan argued that the statutory attorney-review requirement was unconstitutional. In turn, Mr. Lynch argued that the written agreement was unenforceable because the parties did not receive the independent advice of counsel as required by statute.

The trial court ultimately held that the attorney-review requirement did not contravene Ms. Moynihan’s constitutional rights and found 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.  When the case was subsequently appealed, the Appellate Division reversed the trial court’s decision stating that the written agreement entered by the parties constituted a palimony agreement but was unenforceable because the parties failed to comply with the statutory requirement for attorney-review. Thereafter, the Supreme Court granted certification and heard the case.

In holding that the statutory requirement for attorney-review of palimony agreements is unconstitutional, the Supreme Court relied upon Article I, Paragraph 1 of the New Jersey Constitution, which guarantees an individual’s right to independence and to allow them to enter contracts without the need of an attorney.  Additionally, the Supreme Court noted that “of all the agreements in a family law setting, only a palimony agreement requires that, for its enforcement, the parties must have secured the independent advice of counsel.”  Id. at *38.  Ultimately, the parties’ palimony agreement was deemed enforceable. As a result of Moynihan, palimony agreement must still be in writing and signed, but parties are no longer required to secure the advice of independent counsel to make the agreement enforceable.

If you have any questions regarding the enforceability of a palimony agreement, the Morristown palimony lawyers at Lyons & Associates, P.C., can help. To learn more or to schedule a free consultation, call us at 908-575-9777 or contact us online. Located in Somerville and Morristown, New Jersey, we proudly serve clients in Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.