*Richard S. Diamond, Esq.
Society is changing. Traditional constructs of the American "family" have become outdated. Today, there is no concrete definition of a "family." The court in Dey v. Varone (333 N.J. Super . 616 (2000)), suggests that there has never been a clear definition as to what constitutes a "family" or "family-type" relationship. Certainly, the "Leave It to Beaver" family still exists but is no longer the sole construct of the functional family. Arguably, a teen mother and her baby are a family in our society today. So is a couple cohabitating out-of-wedlock. Today, there are more stepparents, stepchildren, half-siblings, foster families, unwed parents, teen mothers, childless parents, parentless children, and homosexual domestic partners than ever before.
The traditional construct of the American family changed 23 years ago in New Jersey when our Supreme Court addressed whether it should afford legal rights to unmarried heterosexual cohabitants when their relationship ended - a concept that was unheard of in New Jersey prior thereto. According to our Supreme Court, society's mores were found to have changed and agreements between adult heterosexual parties living together were enforceable. Our Court concluded that previous judicial barriers that stood in the way should be removed (Kozlowski v. Kozlowski, 80 N.J. 378 (1979)). Clearly, society's mores continue to change.
As the variety of human relationships within the concept of a family grows, so too will the scope of family law. In the not too distant future, Courts will be charged with the responsibility of deciding many novel issues that arise as a result of individuals in these relationships in effort to preserve their rights. Certainly, the issue of homosexual cohabitation will be no exception. During the course of homosexual relationships, several issues are sure to arise. These include support obligations, adoption, child parenting time, property distribution and domestic violence, all of which in heterosexual relationships are considered actions to be commenced in the Family Part.
Arguably a pivotal question involving homosexual relationships will be the extent to which the courts will become involved in deciding issues that arise in a breakup, including support and property distribution. The issue of support is particularly fascinating when considered in light of the New Jersey cases that have upheld the concept of palimony. One such case, Kozlowski v. Kozlowski (80 N.J. 378 (1979)) involved a woman's action against a man with whom she had lived for fifteen years seeking to recover a share of the assets he had accumulated during those years, the reasonable value of services rendered for his benefits, and future support based on promises made to her during the course of their relationship in which she alleged to her detriment. (Id.) As the court noted, "he primary issue. . . is whether a man and a woman who are not married to each other, and who live together without a promise of marriage, may enter into a contract which, if otherwise valid, is enforceable by our courts." (Id. at 380). The court held that "an agreement between adult parties living together is enforceable to the extent it is not based on a relationship proscribed by law, or on a promise to marry." (Id. at 387).
When an intimate relationship evolves and a couple begins to cohabitate, the same characteristics attach in a homosexual cohabitation relationship as in a heterosexual cohabitation relationship. The homosexual cohabitating couple typically intertwine their lives in the same way with the same dangers when the relationship ends as with a heterosexual cohabitating couple.
Kozlowski illustrates the concept of palimony as the unmarried cohabitants' answer to alimony, based on the principles of contract. In the stereotypical palimony setting, usually a man will promise to provide for a woman if she agrees to cohabitate with him and take care of him, and she alters her financial position (to her detriment) in reliance on those promises. Based on that "detrimental reliance", our Courts have found the foundation to impose financial obligations upon that man, (based on a variety of equitable remedies). The same situation can and will happen in same sex relationships when one party relies to his or her detriment on the other party's promise and the relationship comes to an end.
Although our palimony cases were decided in contemplation of heterosexual cohabitation, there is no logical reason why their holdings should not extend to homosexual cohabitation as well. Homosexual partners could just as easily find themselves in a similar predicament, where one partner performs certain functions and changes his/her position in reliance on the other's promise of support and sharing of assets. Detrimental reliance is a time-honored theory of contractual obligation that should make no distinction on the basis of sexual orientation. This extension of the palimony concept would be the most logical cognizable basis for finding a support obligation between homosexual cohabitants at the termination of the relationship and addressing the division of assets acquired during the course of that relationship.
Once it has been determined that an action between two former homosexual cohabitating adults in a palimony style action can be had, then it must be determined in what forum the case should be heard. Family style actions between heterosexual couples are heard in the Family Part court and the same should hold true with homosexual couples under a "family type" heading.
The key terms in the Family Part, Court Rule 4:3-1(a)(3) "family" or "family-type" encompass much more than the traditional heterosexual family structure. Justice Long in V.C. v. M.J.B., 163 N.J. 200 (2000), made it clear:
We should not be misled into thinking that any particular model of family life is the only one that embodies "family values." Those qualities of family life on which society places a premium -- its stability, the love and affection shared by its members, their focus on each other, the emotional and physical care and nurturance that parents provide their offspring, the creation of a safe harbor for all involved, the wellspring of support family life provides its members, the ideal of absolute fealty in good and bad times that infuses the familial relationship (all of which justify isolation from outside intrusion) -- are merely characteristics of family life that, except for its communal aspect, are unrelated to the particular form a family takes. Those attributes may be found in biological families, step-families, blended families, single parent families, foster families, families created by modern reproductive technology, and in families made up of unmarried persons. What is required is the creation of "an intimate familial relationship that is stable, enduring, substantial and mutually supportive, . . . one that is cemented by strong emotional bonds and provides deep and pervasive emotional security." (Emphasis added) Id. at 232, quoting Dunphy v. Gregor, 136 N.J. 99, 115 (1994); see also, Watkins v. Nelson, 163 N.J. 235 (2000); Brennan v. Orban, 145 N.J. 282, 301 (1996); Crowe v. De Gioia, 102 N.J. 50, 56 (1986).
Our Appellate Court also recently addressed this area and suggested that actions for partition of real estate owned jointly by unmarried cohabitants belong in the Family Part and not the General Equity Part. (Dey v. Varone, 333 N.J. Super. 616, 619 (2000)). The court in Dey v. Varone, Id., cited Olsen v. Stevens where the court determined a General Equity partition action should have been transferred and consolidated with a Family Part action which involved palimony, child support and the division of other assets in an unmarried cohabitation relationship.
"Although the Appellate Division does not elaborate, the obvious benefit is to have all issues as to all parties resolved in a single forum, the vision that property disputes between unmarried cohabitants should be resolved by the same courts that resolve disputes between married cohabitants." Id. at 619; see also, In re Estate of Roccamonte, 324 N.J. Super. 357, 366 (App.Div. 1999).
The language utilized by our courts makes clear that "disputes between unmarried cohabitants should be resolved by the same courts that resolve disputes between married cohabitants." With this body of law behind us, how can our Courts distinguish between a heterosexual and homosexual cohabitation relationship? The heterosexual relationship is not unique in respect to the issues to be resolved. In both types of relationships, the division of assets and other equitable relief issues need to be addressed. So why, would actions involving heterosexual cohabitants be held different from actions involving homosexual cohabitants when the relationship's qualities and have to be resolved are identical in nature?
The New Jersey Supreme Court has repeatedly acknowledged the need to defer to Family Part judges in matters dealing with families or "family-type" situations. In Brennan v. Orban, 145 N.J. 282 (1996), the court emphasized that the "constitutional amendment creating the Family Part arose from the idea that this court would specialize in and uniquely understand the problems of families and all matters related thereto. The goal was to achieve a sounder and better form of justice." (Id. at 619.) This unique knowledge of the Family Part judges would greatly benefit any cohabitating couple, whether heterosexual or homosexual in nature.
Family Part judges commonly deal with the division of property between persons in a family or family-type setting. They have at their disposal various forms of mediation and alternative dispute resolution devices that do not exist to the same degree in the General Equity Part. With the goal of the ever changing family structure in mind, it would follow that any issue resulting from a cohabitation relationship, whether heterosexual or homosexual, should be heard in the Family Part of the Court System as a "family-type" setting and viewed identical in nature in terms of the type of relief available.
The Court in 1979, saw that the mores of society had changed so radically in regard to cohabitation that it could no longer impose a standard based on moral considerations that had been abandoned by so many. It seems that the mores of society have changed once again in regard to cohabitation of homosexual couples. It is time the Court remove the judicial barriers that stand in the way of fulfilling the reasonable expectation of the parties involved, including the imposition of obligations against one or both parties flowing from the termination of that relationship.
This is only one example of a legal question which is posed by homosexual relationships. The nontraditional family is a growing reality. Courts will increasingly play an important role in deciding these family style issues in homosexual cohabitation relationships. The only question is in what court and under what theory will these issues be resolved. Regardless of people's attitudes toward the lifestyle choices of others, the law must adapt to a changing society in which new forms of family relationships will subject the rights and obligations of individuals to legal scrutiny. The courts should be careful not to apply different standards to circumstances that are substantivally the same. If you take out the pronouns representing the sex of the parties, the underlying, substantive circumstances are identical and should be treated as such by the law.
With more than half a century's experience, it's easy to see that Diamond & Diamond is the smart choice when you find yourself in need of NJ legal representation in gay & lesbian domestic disputes, family law, divorce, domestic violence or child custody matters in New Jersey. Email or call us now at 973.379.9292