Litigation: February 2008 Archives
Palimony, support paid by one person to another based on a marriage-type relationship and a promise to support. To prove a case of palimony, the person seeking support must establish
(1) that the parties cohabitated; (2) in a marriage-type relationship; (3) that, during this period of cohabitation, defendant promised plaintiff that he/she would support him/her for life; and (4) that this promise was made in exchange for valid consideration.
The principal of palimony rests on the notion that "a marital-type relationship is no more exclusively dependent upon one partner's providing maid service than it is upon sexual accommodation. It is, rather, the undertaking of a way of life in which two people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, and fulfilling each other's needs, financial, emotional, physical and social, as best as they are able. And each couple defines its way of life and each partner's expected contribution to it in its own way." Levine v. Konvitz, 383 N.J. Super. 1, 3 (App. Div. 2006).
The concept of palimony makes sense in a society that is defined by indefinable family structures. Also, from a public policy stand point, it makes sense to place the burden of supporting another on the person who created the dependency, rather than shift the burden to society by forcing a dependent person to rely on public assistance. However, the flip side of the coin makes me think that palimony creates greater rights in non-married people than married couples have.
In a recent 3rd Circuit Court decision, Carino v. O'Malley, the Federal Court held that cohabitation is not an indispensable element of a claim for palimony. In this case, the parties involved in a romantic relationship were an 18 year old college student and a 55 year old divorced father of 3 children. Over the course of 17 years, they maintained an exclusive relationship. She moved from New Jersey to New York to be closer to her employment and because he convinced her it was more convenient for their relationship. He helped pay for her apartment and he purchased a condominium in New York City. He also provided her with significant cash and paid for her credit cards, health insurance , utility bills and trips the two took together. Furthermore, he made certain promises to her to provide continued financial assistance. The two, however, never lived together. Although the Federal Court applied New Jersey law, as it was required to do so under this case, and recognized that several New Jersey cases held cohabitation to be an indispensable element of a palimony claim, the Federal Court rejected the bright-line requirement. The Federal Court reasoned that the New Jersey decisions were not based upon explicit statements of the Supreme Court, but rather on an interpretation of the Court's definition of a "marital-type" relationship. Shortly after the Federal Court's decision, the New Jersey Appellate Division decided another palimony case, Devaney v. L'Esperance, and again held that cohabitation is an essential element of a palimony claim. The New Jersey Supreme Court heard argument on this recent decision on
In our dynamic society, committed relationships can encompass something other than sharing the same residence. As we know from the advent of civil unions, we certainly have to distance ourselves from long standing notions of the traditional family unit. However, allowing a claim for palimony without requiring cohabitation exposes each one of us to outrageous claims for support. To protect ourselves, do we now have to create a new brand of contract - the "Anti-Relationship Agreement" or the "Friendship Agreement" - just so we all know where we stand?
Matthew Podolnick
Inevitable. Senator Arlen Specter's office confirms that the Senator is seeking a "sit-down" with Roger Goodell, the Commissioner of the National Football League to discuss what has now been dubbed "spygate", specifically, the New England Patriots purported "spying" on opposing teams to gain a strategic advantage in games and the NFL's response and conduct in the wake of that purported activity, including alleged destruction of data.
The Senator is the ranking Republican on the Senate Judiciary Committee, the same Committee that investigates criminal conduct at the highest levels of government, including Watergate and Iran-Contra; conduct where the face of the nation was on trial. Now, the Committee is looking into the propriety of a football team and it's governing body. Don't misconstrue, there is a history of private litigants challenges to the conduct of the NFL in the civil controversy arena, but the Senate Judiciary Committee, perhaps the most prestigious sophisticated Congressional Committee in the United States government? Maybe the attention drawn to Senator Mitchell's investigation of Major League Baseball has something to do with it? To date, the New England Patriots have not commented on the media reports and no one within the organization has confirmed the number of videographers or rather, whether there was more than one "shooter".
John M. Hanamirian
The Pennsylvania Superior Court recently clarified conflicting decisions of whether conversations between witnesses and attorneys during a deposition are subject to the attorney-client privilege. The Court held in AmerisourceBergen Drug Corp. v. Curascript, Inc. that any discussion between a deponent and his attorney is privileged, though the deponent must answer whether he spoke with his attorney during a break in the deposition.
We think this is the correct decision. Piercing the attorney client privilege will result in less communications between attorney and client during what is oftentimes a crucial period in the litigation process. It is during depositions that a party often learns the most about the other party’s claims and defenses. The attorney of the deponent is at the deposition to ensure that these claims/defenses are articulated properly and not misinterpreted due to misleading or confusing questions. Also, no matter how experienced a party is in the litigation process, depositions are a trying event. Without a chance to consult with counsel during a deposition, a party could be left with a transcript full of misunderstandings that would be difficult to correct at a later time.
Also, and perhaps most important, almost every attorney consults with his client during a break in the deposition. There is no sense having a rule that no one will follow.
Jeff Resnick
Britney Spears allegedly filed for a restraining order against her then current boyfriend Adnan Ghalib, supposedly a member of the paparazzi, because he was informing his agency about her whereabouts. Rather than merely end their relationship, thereby severing his ability to provide his agency with photo ops, Britney took the decidedly aggressive course of action and supposedly filed for protection under California's domestic violence laws. Was Britney's conduct warranted, an over reaction or an abuse of the system?
A person can file a complaint alleging an act of domestic violence and obtain a restraining order in a local Municipal Court or the Family Part of the Court, when the act of domestic violence is between people with a relationship, if that person inflicts one of the following: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment or stalking. Judges routinely issue temporary restraining orders upon the sworn oral testimony of the victim who is not required to be physically present when the person seeking restraints appears to be in danger of domestic violence. The oral statement can be given to the judge over the telephone. Once the temporary restraining order is issued, a hearing is scheduled in front of a judge who then may issue a final restraining order upon a specific finding of domestic violence or dismiss the temporary restraints.
Unfortunately, the domestic violence laws are increasingly used as a sword rather than a shield for which they were intended. As the number of couples filing for divorce exceeds 50%, and as dads' roles in the house as care givers for the children expand and so do their rights to custody, the filing of false domestic violence complaints, by both men and women, grows. False claims are filed in an effort to gain a strategic advantage in the divorce litigation. These false claims, however, trivialize the true suffering of real victims of domestic violence and are an abuse of the system.
Victims of domestic violence need protection and restraining orders can be an important tool. When the domestic violence laws are used inappropriately with greater frequency, however, the real victims are abused again because judges become cynical and may not grant restraints when they are truly warranted. Additionally, children get caught up in the battle between feuding parents and become victims themselves when a false claim is filed because routinely the temporary restraining order prohibits the accused of seeing the children. To compound the growing problem, in a recent Appellate Court decision it was held that even if an alleged victim loses in the Family Court, double jeopardy does not attach and a criminal complaint can be pursued.
