Brian Paul

Co-Managing Partner Brian Paul recently served as lead author on an amicus curiae brief the New Jersey State Bar Association (NJSBA) filed with the New Jersey Supreme Court regarding a 2010 amendment to the New Jersey Statute of Frauds, which requires that palimony agreements be in writing and entered with the advice of counsel in order to be enforceable.

In the matter of Moynihan v. Lynch the parties were in a long-term dating relationship that began in 1997. In 2014, the parties entered into a handwritten agreement that they both signed before a notary. The Agreement provided that in the event their relationship ended, the defendant would pay off the mortgage on their jointly titled home, sign a Deed transferring the property to plaintiff’s name only, and provide the plaintiff with $100,000. The defendant admitted that he did not intend to be bound by the signed agreement he entered into with his long time significant other, but did not inform the plaintiff of his intentions. The plaintiff did request that an attorney review the palimony agreement, but the defendant refused, telling the plaintiff that he was a “man of his word” and did not want to incur any legal fees. Despite this and the fact the agreement was signed by both parties and notarized, the Appellate Division rejected the plaintiff’s assertion that promissory estoppel and partial performance were a valid defense to the statute in question and their palimony agreement was deemed unenforceable for their failure to consult with independent legal counsel before signing the agreement.

In the amicus brief, the NJSBA argues that the goal of the Statute of Frauds has always been to prevent frauds from being committed through the use of uncertain, unreliable and perjured oral testimony. To ensure that a statute designed to prevent a fraud is not used as a sword to perpetrate a fraud, New Jersey courts have historically retained certain equitable powers, including the use of equitable defenses like promissory estoppel and partial performance, to ensure that an oral promise can still be enforced when necessary to avoid an injustice. The NJSBA argued that the amendment to the Statute of Frauds at issue in this matter (2010 Amendment), providing for certain requirements to be met before a palimony agreement can be enforceable, should not alter those powers. The NJSBA further argued that the Amendment’s requirement that both parties in a non-marital relationship have independent advice of counsel for promises of support or other consideration violates the Contract Clause and Equal Protection Guarantees of the United States and New Jersey Constitutions, noting: “Two individuals in a non-dating relationship, such as two business partners, or friends, or siblings, signing the same exact agreement as the parties in this case would have a binding and enforceable contract. There is no rational governmental interest in such disparate treatment in the two identical instances, especially when one considers that the stringent, non-waivable requirement for non-married partners to seek independent advice of counsel does not apply to any other family-type of agreement.”

The oral arguments for this matter are yet to be scheduled.

Brian Paul is the Co-Managing Partner of Szaferman Lakind and specializes in litigating, mediating and arbitrating financially complex high net worth divorce cases. Brian has been involved in many appellate cases that have helped shape family law in New Jersey and has been awarded the NJSBA’s Amicus Curiae Award on five separate occasions for his efforts in representing and advocating for the NJSBA’s position on family law cases before the NJ Supreme Court. Due to his vast experience in litigating the most difficult of family law related issues, Brian is frequently asked to serve as an arbitrator/mediator or co-counsel for complex family law cases. To contact Brian, please call (609) 275-0400 or email him directly at