ROCCAMONTE AND THE NEED FOR COHABITATION PLANNING

By: John P. Paone, Jr.

For years, men and women have been entering into premarital agreements prior to embarking upon marriage. Marriage planning today has become a common part of our legal landscape. Conversely, very little attention has been paid to the need for planning prior to couples electing to live together. Indeed, many have falsely assumed that cohabitation was a "do-it-yourself" way to avoid the type of liability that arises from a lawful marriage. The recent New Jersey Supreme Court decision in In Re Estate of Roccamonte, 174 N.J. 381 (2002) has established that this thinking is wrong.

With the increasing number of heterosexual couples living together without the benefit of marriage- and with over 16,000 same sex couples living together and presently prohibited from legally marrying in New Jersey- the need for cohabitation planning reaches many residents in our state. This article will review the Roccamonte decision and explore the rights and liabilities of unmarried couples that elect to live together without the benefit of a written cohabitation contract. This article will demonstrate how the outcome in Roccamonte may be vastly different in other cohabitation cases. This article will assist practitioners in drafting cohabitation agreements and in cohabitation planning for their clients.

A. The Roccamonte Case

Arthur Roccamonte and Mary Sopko lived together for over 30 years without becoming lawfully married. Arthur met Mary in the 1950's while she was employed in New York as a model. In the early 1960's Mary moved to California because Arthur refused Mary's request that he divorce his wife. Arthur pursued Mary in California and convinced her to return to New Jersey. Mary returned to New Jersey and the parties began living together.

During their relationship, Arthur paid $15,000 to purchase a co-op apartment and placed the title to that asset in Mary's name; he paid the $950.00 per month maintenance on the co-op; he paid for Mary's food, clothing and furniture; he gave Mary $600.00 per week for household expenses and paid for improvements and renovations to the co-op. Arthur paid for dinners out, jewelry, furs, vacations and also assisted in the support of Mary's daughter from her previous marriage.

For her part, Mary provided what can best be described as domestic services for Arthur. This included, cooking, sexual relations, housekeeping, shopping, escorting and accompanying Arthur and caring for him during his illness.

Arthur never got divorced, but the parties continued to live together. In 1995, Arthur died without leaving a will. By operation of the law of intestate succession, Arthur's surviving spouse and his two emancipated children stood to inherit his entire estate.  Upon Arthur's death, Mary owned the co-op and the furniture therein, a certificate of deposit valued at $10,000.00 and an $18,000.00 life insurance policy on Arthur's life. At the time of Arthur's death, Mary was 70 years old, living on only social security and food stamps.

Mary filed suit against Arthur's estate seeking to enforce what she claimed was Arthur's promise of lifetime support. The matter had a long and tortuous pendente lite history as the parties disputed what court and what county would hear this matter. Ultimately, trial took place in Union County before Judge Boyle then sitting in the Probate Part. Judge Boyle concluded that the statements attributed to Arthur "I'll take care of you" and "don't worry, you'll be taken care of" did not constitute an express palimony contract as had been recognized in Kozlowski v. Kozlowski, 80 N.J. 378 (1979) and Crowe v. De Gioia, 102 N.J. 50 (1986). The trial court ruled that these statements were "not capable of any definite or calculable meaning" and therefore did not create an express contract for future support. Judge Boyle distinguished this case from prior palimony cases because in those cases the cohabitant was "tossed aside unfairly" when the promisor went off with a younger woman. Here, the promisor became deceased.1

Finally, Judge Boyle had before him an unreported Appellate Division opinion that was rendered only several months before his decision. (Hendricks v. Richie, Docket # A-1903-98T2). In the unreported case, the Appellate Division ruled that an agreement between unmarried cohabitants terminated upon death. Judge Boyle relied in part on this unreported opinion to conclude that any alleged contract that may have existed terminated upon Arthur's death. Therefore, Mary's action against the estate was dismissed.

The Appellate Division reversed the trial court's decision in a 2-1 reported opinion finding that it was improper to rely on an unpublished opinion; that the statements attributed to Arthur constituted an express palimony contract; and that Mary's contract rights survived the death of the promisor. In Re Estate of Roccamonte, 346 N.J. Super. 107 (App. Div. 2001). Thereafter, the estate took the matter to the Supreme Court. In affirming the Appellate Division decision, the Court established the following guidelines in enforcing palimony contracts:

1. Palimony contracts need not be expressed (i.e. written or oral). Rather, "the existence of the contract and its terms are ordinarily determinable...primarily by the parties' acts and conduct in light of their subject matter and the surrounding circumstances." Roccamonte at 174 N.J. 389.

Although as far back as 1979, Kozlowski stated that there was no legal consequence between an expressed or implied palimony contract, no reported decision previously imputed a contract in a palimony case solely upon the "acts and conduct" of the cohabitants. Noting that in most cases there is likely to be no written contract; and further noting that the cohabitants are likely to dispute whatever oral statements are alleged in furtherance of an expressed contract; Roccamonte opens the door to courts imposing contract terms based upon the facts and circumstances of each case.

In the brief for the Roccamonte estate it was argued that in deciding the terms of an implied contract, the test was whether a reasonable person standing in the shoes of the cohabitant would infer a promise in return for a promise or performance. Farnsworth on Contracts, Section 3.10, at 210 (1990). The argument was made that cohabitants do not want their relationship to have any legal consequences upon termination. If they did they would enter into marriage or an express contractual relationship. Therefore, the estate contended that under this objective standard there could be no implied contract in cohabitation cases. The Court rejected this argument and has now made certain that a palimony contract can be implied based on the facts and circumstances of each case.

2. There is no need to attempt to quantify the consideration given in return for these contracts. The consideration for these contracts "need not be equal to the benefit received." Roccamonte at 174 N.J. 392.

The estate argued that Arthur took care of Mary during his lifetime and that there was no expectation or entitlement for support to continue after his demise. It also attempted to minimize the contributions made by Mary in comparison to what Arthur had done for her during his lifetime. The Court found that unlike commercial contracts, consideration in these "marital-type relationships" is to be viewed differently. Here the consideration is "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 contributions to it in its own way. Whatever other consideration may be involved, the entry into such a relationship and then conducting oneself in accordance with its unique character is consideration in full measure." Id. at 392-393.

3. These contracts, which arise out of a marital type relationship, are to be treated differently than contracts that arise in the commercial setting. As a result "special considerations must be taken into account by a court obliged to determine whether such a contract has been entered into and what its terms are." Id. at 389.

The estate attempted to distinguish this case from Crowe and Kozlowski on the basis that Mary was not entirely economically dependent upon Arthur as she was employed during most of the relationship. The Court determined that the enforcement of these contracts is to remedy "economic inequality." Id. at 393. "If one of the partners is not economically self-sufficient, albeit a wage earner, the promise of support by the other is no less legally significant than if she were entirely economically dependent. The difference is only in the amount of promised support that must be fixed in order to reach a reasonable lump sum payment." Id. Therefore, the financial circumstances of the promisee will have bearing upon whether an implied contract exists and the terms thereof.

4. These contracts do not expire upon the death of the promisor and are enforceable as an obligation against the promisor's estate. Id. at 496-397.

The Court made clear that palimony contracts are enforceable against the promisor's estate, like any other obligation of the estate. The breach of contract was Arthur's failure to provide support for Mary's life upon his death. In this regard, although Arthur died intestate, had he drawn a will which did not provide for Mary's future support the outcome of the case would have been the same. This is because a testator cannot undo a contractual obligation by the terms of his will.2

Because such contracts are implied from the conduct and actions of the parties, Arthur's inability to testify does not raise concerns about fraud and undue prejudice. The decedent's actions will speak on his behalf. In Roccamonte, it was not disputed that Arthur lived with and supported Mary for 30 years.

B. The Equitable Contract

Although the Roccamonte opinion is couched in traditional contract language, the Court essentially set out the parameters for a new form of contract, which I shall hereinafter refer to as "equitable contract." This is because where the contract terms are not expressed, the Roccamonte decision gives future courts the ability to create these contracts based on what is a fair outcome under the facts of each case. It is not insignificant that in Roccamonte, the Court determined that all future palimony claims are to be decided in the Family Part. Previously, when palimony cases did not involve issues concerning the custody or support of children, these matters were decided in the Law Division along with other contract matters. Crowe v. De Gioia, 90 N.J. 126, 136-137 (1982). The Court stated that it was bringing these matters into the Family Part because family judges "have developed special expertise in dealing with family and family-type matters." Roccamonte at 174 N.J. 399. The Family Part is a court of equity with special sensitivities and where the polestar is fairness. In the Law Division, equity takes a back seat to law in enforcement of contract cases. Indeed, as far back as 1985, Justice Long (then sitting in the Appellate Division and authoring the opinion in Crowe that was adopted by per curiam decision of the Supreme Court) recognized these matters as "hybrid" actions. Crowe v. De Gioia, 203 N.J. Super. 22, 37 (App. Div. 1986). Therefore, in many respects palimony cases represent the confluence of the doctrines of contract and equity.

Practitioners should be mindful that Roccamonte, Kozlowski and Crowe present remarkably similar fact patterns: promisees who were of relatively advanced age (70, 63, 58 years) and who had relatively little or no work history outside of the home; promisees with minimal assets and with no significant ability to earn; financially well off promisors; and a long term relationship (30+, 15, 20 years). After Roccamonte, it is clear that future cohabitation cases with different facts will likely face far different results. Under this equitable contract approach, the Court has given itself great flexibility to determine the kind of relief (if any) due to less sympathetic litigants seeking to enforce oral or implied contracts for lifetime support.

For example, if these were simply contract cases, the length of the parties' relationship would be irrelevant for purposes of determining the existence of an enforceable contract. Under the equitable contract approach, a court could conclude that no implied contract for support had arisen from a short term relationship (or perhaps that the support contracted was for a period far less than a lifetime). In this regard, Judge Kraft's opinion in Zaragoza v. Capriola, 201 N.J. Super. 55 (Ch. Div. 1985) is instructive.

In Zaragoza, the court encountered a cohabitant who gave birth to a child in 1982 that was fathered by a man she claimed promised her support for her lifetime. There was no doubt that during their period of cohabitation, the man supported this woman, she was not employed outside of the home, and that she performed services beyond their sexual relationship. However, the parties cohabitated for only 14 months. In making its finding on the existence of a contract, the trial court was not guided by what the parties said but by their acts and conduct. The court stated that successful palimony claims are limited to cases demonstrating "a stable family relationship extending over a long period of time." Id. at 64 (citing Hewitt v. Hewitt, 62 Ill. App. 3d 861, 380 N.E. 2d 454 (App. Ct. 1978)). Based on this short term relationship the court found that "no agreement existed between the parties, either express or implied." Clearly, equity will intercede to reject claims of agreements for lifetime support in short term relationships.

Additionally, equity has a place in these contracts because the Court directs us to examine the economic circumstances of the promisee. If the court were merely enforcing a contract this factor would be irrelevant. When the landscaper comes to collect his bill for services rendered, his financial status is not relevant to his entitlement under the contract. However, the Court in Roccamonte held that this issue was relevant in the determination of whether a contract exists in a palimony case and what relief would be afforded the promisee. As it turned out, this factor did not affect the outcome in Roccamonte as Mary was over 70 years of age and on social security. However, the case of a promisee who may have independent means or who may have the ability to earn which would bring economic self-sufficiently will likely result in no claim under an equitable contract analysis.

The age of the cohabitant is also likely to play a critical role in determining whether a contract exists and in constructing its terms. In Carney v. Hansell, 363 N.J. Super. 111 (Ch. Div. 2003), the promisee seeking lifetime support was only 43 years of age. Although the period of cohabitation was for more than 16 years, the court concluded that the contract for support was not for the promisee's lifetime but only for "as long as she lived with him." Accordingly, the court denied the claim for damages.

Future cases may feature cohabitants who are younger, in shorter term relationships and possessed with greater assets and with greater ability to earn than the promisees in Roccamonte, Kozlowski and Crowe. When these litigants fail to obtain successful results, the perception may be that the pendulum is swinging toward limiting the rights of cohabitants. This observation would be superficial at best. A more accurate observation would be that the holding in Roccamonte now places the court in a position to distinguish between cohabitation cases based on varying fact patterns. Practitioners should understand that not every cohabitant will be entitled to lifetime support. Indeed, the right to support "does not derive from the relationship itself but rather is a right created by contract." Roccamonte at 174 N.J. 381. It is this equitable contract that will give courts the flexibility to do what is fair based on the unique circumstances of each case.

In the end, it may be (as so often has been the case) that Justice Pashman was right in his concurring opinion delivered in Kozlowski. There, the Justice argued that the Court should abandon contract principals altogether in palimony cases and "presume that the parties intended to deal fairly with each other upon dissolution of the relationship- to insure that one party has not been unjustly enriched, and the other unjustly impoverished, on account of their dealings." Kozlowski at 390-391. The Justice suggested that among the factors to be weighed by the trial judge in this analysis would include:

A. the duration of the relationship;

B. the amount and types of services rendered by each party;

C. the opportunities foregone by either in entering the living arrangement;

D. the ability of each to earn a living after the relationship has been dissolved.

I would add to these factors:

E. the age of the parties;

F. the assets owned by the promisee;

G. the assets acquired by the promisor during the relationship; and

H. the promisor's obligation to children or a present or former spouse.

Importantly, Justice Pashman noted that "decisions concerning the complexities that might arise upon application of these principles must be determined on a case by case basis." Id. at 391. While Roccamonte has remained wedded to the concept of finding a contract, by also incorporating the equitable principles outlined above, the Court has made palimony matters equitable contract cases which will be distinguishable based on the facts of each case.

C. Same Sex Cohabitants

Palimony cases have been described as matters involving relationships "akin to a marriage" or a "marital-type relationship." When the law provides that marriage is defined as a relationship between one man and one woman, the question arises whether the law in palimony cases can be extended to same sex cohabitants. The fact that same sex couples cannot legally marry in New Jersey (Lewis v. Harris, Mer-L-15-03) makes the extension of these contract principles necessary to avoid the type of injustice that caused the Court to act in Roccamonte, Kozlowski and Crowe.

The Court faced a similar threshold when it extended the principals of contract and palimony to unmarried couples notwithstanding the law of this state not to recognize common law marriages. In doing so it relied on the following language from the California Supreme Court decision in Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106 (1976): "The mores of society have indeed changed so radically...that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many." Kozlowski at 386. For these same reasons, I do not believe that New Jersey's refusal to recognize same sex marriage will act as a bar to enforcing palimony contracts between same sex couples.

Recently, the Legislature enacted the "Domestic Partnership Act" which enables same sex couples (and heterosexual couples over the age of 62) to file an "affidavit of domestic partnership" where the couples are "jointly responsible for each other's common welfare." See A.3743 (passed January 8, 2003). The Act provides that each domestic partner agrees to provide for the other partner's basic living expenses (defined as food, shelter and any other costs, including but not limited to the cost of healthcare) if the other partner is unable to provide for himself-- however --upon termination of the domestic partnership, the domestic partners from that time forward shall incur "none of the obligations to each other... as created by this Act."

The Act also gives the Superior Court jurisdiction over "division and distribution of jointly held property" between domestic partners. However, "the court shall in no event be required to effect an equitable distribution of property...acquired by both domestic partners or either domestic partner during the domestic partnership." Therefore, the Act affords only limited property rights and apparently no post-termination support rights to same sex cohabitants. Nevertheless, the Act makes clear that it does not diminish "any right granted under any other provision of law" for domestic partners. Furthermore, it provides that domestic partners "may modify the rights and obligations of each other that are granted by this Act in any valid contract between themselves...." As such, the Act appears to encourage and endorse the enforcement of cohabitation agreements between same sex couples and would not appear to bar the extension of palimony contract principles as recognized in Roccamonte to these cases.

D. Do Palimony Cohabitants fare better than Married Persons?

One of the arguments raised by the dissenter in the Appellate Division opinion in Roccamonte is that a palimony promisee should not be in a better position than a divorced spouse. Roccamonte at 346 N.J. Super. 122-125. Specifically, the argument made was that while alimony terminates upon death of the payor under N.J.S.A. 2A:34-25, in Roccamonte the contract right (to a "one time lump sum...in an amount predicated upon the present value of the reasonable future support defendant promised to provide to be computed based upon the promisee's life expectancy") survives the death of the promisor. Roccamonte at 174 N.J. 390. In responding to this criticism, the Court noted that while alimony terminates upon death, provisions are regularly made for life insurance to secure the obligation for the lifetime of the alimony recipient. Moreover, in cases where life insurance is not practical the court may direct the establishment of an inter vivos trust to secure future support. Jacobitti v. Jacobitti, 135 N.J. 571 (1994).

Commentators who bemoan the Roccamonte line of cases as placing palimony promisees in a better position than divorced spouses fail to see the big picture. These critics focus primarily on the victorious promisee receiving a one time lump sum payment, immune from changes in circumstances (such as the payor's reasonable retirement) and other terminating events (such as the subsequent marriage of the recipient). While a one time lump sum payment has its benefits, it does not take into account changes in circumstances that would warrant an increase in the award such as future disability or increased needs of the promisee. Indeed, in Crowe the Court affirmed the trial court¿s calculations regarding the lump sum award which gave no consideration to inflation and future cost of living increases. Crowe at 203 N.J. Super. 35. Collection of these awards may also be problematical. For example, as contract judgments, palimony awards would appear to be dischargeable in bankruptcy, where alimony claims are protected.3

Moreover, a more generous standard applies in the calculation of alimony as compared with the standard for support in a palimony case. Married persons are entitled to alimony in an amount which will afford them a lifestyle reasonably comparable to the standard of living established during the marriage. Crews v. Crews, 164 N.J. 11 (2000). Roccamonte did not adopt the Crews standard for determining support in the calculation of a lump sum palimony award. Instead the standard for support of an unmarried cohabitant is an amount which will provide a "reasonable degree of economic comfort appropriate in the circumstances." Roccamonte at 174 N.J. 393. This standard gives the court latitude to deviate from the actual lifestyle enjoyed during the period of cohabitation. It is easy to see how this standard may diminish the entitlement of a cohabitant in the case of a palimony promisor with limited means-- or where the palimony promisor may have obligations to a spouse entitled to alimony and unemancipated children entitled to child support. The reasonable support for a palimony promisee will vary greatly from case to case based upon the underlying circumstances, even though the promise for lifetime support may be identical.

Commentators have also ignored the limitations on a cohabitant's ability to share in property acquired during the relationship. There is no right to equitable distribution for unmarried cohabitants. Kozlowski at 383. In most cases, property titled solely in the name of the promisor acquired during the period of cohabitation will be beyond the reach of the promisee. The promisee is at best limited to claims under theories of joint venture, partnership and partition claims under principals of owelty. See Baker v. Drabik, 224 N.J. Super. 603 (App. Div. 1988); Asante v. Abban, 237 N.J. Super. 495 (Law. Div. 1989). Claims dealing with real property are likely to be met with statute of fraud defenses. In short, property claims by cohabitants based on oral or implied agreements are not likely to be met with open arms. Wajda v. Wajda, 239 N.J. Super. 248 (Ch. Div. 1989); Carney v. Hansell, 363 N.J. Super. 111 (Ch. Div. 2003). In California, the courts have declined to use the doctrine of implied contract to enable a promisee to share in the cohabitant's business success during the relationship. In Maglica v. Maglica, 66 Cal. App. 4^th 442, 78 Cal. Rptr. 2^nd 101 (1998), the court required direct testimony of an agreement and other proofs before it would entertain the plaintiff's claim for a share of the cohabitant's multimillion dollar business which "boomed" during their relationship.

Some have pointed out that a subsequent marriage of the parties eviscerates the substantial contract rights created through cohabitation. It has been held that cohabitation contracts merge and are subsumed by the greater contract of marriage and are therefore unenforceable. Mangone v. Mangone, 202 N.J. Super. 505 (Ch. Div. 1985). However, the equitable remedies available in divorce actions give the court great ability to provide relief to address the premarital contributions of the parties. Id. at 510. Weiss v. Weiss, 226 N.J. Super. 281 (App. Div.) cert. den. 114 N.J. 287 (1988); Berrie v. Berrie, 252 N.J. Super. 635 (App. Div. 1991); Coney v. Coney, 207 N.J. Super. 63 (Ch. Div. 1985).

Also keep in mind that palimony litigants may not be entitled to counsel fees, whereas married persons may seek counsel fees in their actions. Crowe at 203 N.J. Super. 39-40; Carney v. Hansell, 363 N.J. Super. 111 (Ch. Div. 2003); but see R. 5:3-5(c) (permitting the court to assess fees in "claims relating to family type matters in actions between unmarried persons" and Judge Pressler's comment that the construction by Crowe is "superseded" by this rule change). Palimony litigants are not entitled to pendente lite relief unless they establish "the need is urgent and the probability of success high" with reference to their claims. Roccamonte at 174 N.J. 399-400. The State of California refuses to grant pendente lite relief in palimony cases stressing the paradox of awarding damages in a contract case before a hearing and establishment of a claim. Friedman v. Friedman, 20 Cal. App.4^th 876, 24 Cal. Rptr.2^nd 892 (Ct. App. 1993). If any pendente lite relief is granted, the amount is to be deducted from the eventual lump sum awarded to the palimony claimant. Roccamonte at 174 N.J. 399-400.4

The public policy of this state in favor of marriage has not changed. Indeed, it is difficult to foresee many instances where a palimony promisee would be better off than a similarly situated married partner. Notwithstanding an attempt to treat unmarried cohabitants fairly, the rights of unmarried cohabitants are limited and these parties often face a long and hard road when seeking to enforce those rights.

 E. Cohabitation Planning

As prudent individuals come to recognize cohabitation planning as a necessity, practitioners will have to address these requests and be prepared to draft cohabitation agreements. There is currently no case law in New Jersey involving the enforcement of a written agreement drafted in contemplation of cohabitation. However, there is little doubt that these written contracts will be important to limiting potential exposure and in fixing the rights of the parties upon termination of a cohabitation relationship.

For guidance in drafting, practitioners should look first to the Uniform Premarital Agreement Act and the requirements for an enforceable premarital agreement. N.J.S.A. 37:2-31. That having been said, there are differences between the potential claims of cohabitants and married persons. Therefore, it would be wrong to suggest that the Act is the sine qua non for enforcement of cohabitation agreements. It is important to keep in mind that in premarital agreements, statutory rights to alimony and equitable distribution are being waived and modified. Cohabitation agreements merely express the contract between the cohabitants and their rights under that contract upon the termination of the relationship. Thus, for example, as there is no right to equitable distribution between unmarried cohabitants, it would not appear that the same level of financial disclosure is needed to enforce these agreements as to issues concerning property rights.

Clearly, the motivation for these agreements will be for financially successful cohabitants to have financially dependent cohabitants waive any claim to support including any lump sum payment upon the termination of the relationship. Before drafting agreements which provide for blanket waivers, the practitioner should consider whether the Family Part will enforce a cohabitation agreement that becomes unconscionable at the time enforcement is sought. See N.J.S.A. 37:2-38b. The Family Part does not enforce Property Settlement Agreements between married partners that are not fair and equitable. Peterson v. Peterson, 85 N.J. 638 (1981); Edgerton v. Edgerton, 203 N.J. Super. 160 (App. Div. 1985). In Roccamonte, had Mary signed such an agreement at the request of Arthur, would a court of equity enforce such a contract, thereby leaving the dependent promisee destitute at the end of a long term relationship? From an equity standpoint, the answer is no. From a contract standpoint, the answer is that Mary is only entitled to the rights under her express contract.

Rather than seeking an absolute waiver of liability, cohabitation agreements may be most effective (and most enforceable) by defining and limiting exposure in such cases. Thus, an agreement which provides a cohabitant nothing if the relationship lasted only 5 years, and then X amount of support for Y years if the relationship exceeded 5 years, and so on, will have a far better chance of surviving the scrutiny of a court of equity and will accomplish the goal of allowing cohabitants to limit their future liability. If there is to be a blanket waiver of liability, the agreement should address the promisor's contributions to the promisee as consideration for the waiver. In Roccamonte, Arthur purchased Mary a co-op and made her the beneficiary of a life insurance policy on his life but these acts did not factor into the Court's decision. A cohabitation agreement should recite as consideration from the promisor what otherwise may be misconstrued as a gift. Conversely, premarital agreements are enforceable without consideration. N.J.S.A. 37:2-33.

In the aftermath of Roccamonte, cohabitation agreements must address the rights of the parties in the event of death. I do not believe that the court would prohibit parties from entering into agreements whereby all contractual obligations arising during the period of cohabitation expire and are deemed satisfied upon the death of a cohabitant. However, the question again arises, will a court of equity leave a financially dependent cohabitant, such as Mary, destitute after a long term relationship that ends by the death of the financially successful cohabitant. To ensure that the promisor's obligations will terminate, these agreements should contemplate a provision for life insurance or a specific bequest in the Will of the promisor making clear that this is intended to discharge any contractual obligation that may exist.

Because such contracts are not negotiated at arms length, it would be prudent to insist upon independent counsel for each party or to expressly waive in writing the opportunity to consult with independent legal counsel. See N.J.S.A. 37:2-38(4). Although no party apparently had counsel in Roccamonte, Kozlowski and Crowe prior to entering into those oral or implied contracts, the failure to have independent counsel (or clear evidence that the right to counsel has been waived) is likely to be fatal to the enforceability of written agreements which severely limit the contract rights of financially dependent cohabitants.

A question also arises as to whether cohabitation agreements must be executed before the commencement of cohabitation. Due to the nature of such relationships it is not likely that they will come with the type of "lead time" which normally precedes a marriage (i.e. no engagement period). Furthermore, premarital agreements must be executed before the marriage ceremony because certain statutory rights arise contemporaneously with a lawful marriage which cannot be modified afterward except in limited circumstances. Pacelli v. Pacelli, 319 N.J. Super. 185 (App. Div. 1999); Nicholson v. Nicholson, 199 N.J. Super. 525 (App. Div. 1985). While it should not be fatal for cohabitation agreements to be executed after the commencement of cohabitation, agreements executed long after the cohabitation has commenced and after parties have changed their position in reliance upon a promise, express or implied, are likely to be subject to greater scrutiny.

F. Conclusion

Practitioners should understand that to date we have only scratched the surface regarding potential cohabitation cases. From the vast array of cohabitants likely to come before the court, many different outcomes will be realized. Practitioners should be prepared to advance the case law as different factual scenarios present themselves and to counsel their clients on the merits of cohabitation planning.

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4 Unmarried cohabitants in a domestic violence proceeding can obtain interim support without establishing a palimony contract. Maksuta v. Higson, 242 N.J. Super. 452 (App. Div. 1990).