1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized).

Maeker v. Ross (A-1-13) (072185)

Argued March 4, 2014 -- Decided September 25, 2014

ALBIN, J., writing for a unanimous Court.

In this appeal, the Court considers whether the Legislature, in passing the 2010 Amendment to the Statute 

of Frauds, N.J.S.A. 25:1-5(h), intended to render oral palimony agreements that predated the Amendment 

unenforceable.

In 1998, Maeker and Ross began a romantic relationship. The next year, Maeker moved into Ross’s home. 

From the time they began living together, until their separation in 2011, Ross financially supported Maeker, paying 

for all of her living expenses. In return, Maeker performed all of the duties requested of her. They later moved into 

a house they rented together and held themselves out to the world as a family unit. During their thirteen-year 

relationship, Ross repeatedly promised that he would financially support Maeker over the course of her lifetime. In 

2001, based on those promises, Maeker left her twenty-year career in the architectural glass industry. In December 

2010, Ross executed a written power of attorney, authorizing Maeker to manage and conduct all of his financial 

affairs and executed a written will naming Maeker the executor and trustee. On July 1, 2011, Ross ended their 

relationship, moving out of their joint residence, cutting off all ties to Maeker, and terminating all financial support. 

Maeker claims that she devoted a substantial amount of her adult life to sustaining Ross’s emotional and physical 

needs and advancing his financial interests. She further claims that her efforts were made entirely on her reliance on

the representations and promises of Ross to provide her with lifetime financial support.

Maeker filed a complaint in the family court seeking enforcement of their oral palimony agreement. Ross 

moved to dismiss Maeker’s complaint on the grounds that it failed to state a claim on which relief could be granted 

because the 2010 Amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h), bars enforcement of all oral palimony 

agreements, even those predating the Amendment. The court denied Ross’s motion to dismiss, observing that the 

Statute of Frauds is not retroactively applied to invalidate contracts entered into before its enactment. The court 

found that the Amendment did not indicate that the Legislature intended to eliminate legitimate palimony claims that 

may have accrued throughout the last thirty years. In the absence of that clear indication, the court concluded that 

the Amendment should not be construed to invalidate a pre-existing palimony agreement and deprive Maeker of a 

cause of action. Therefore, the court allowed Maeker to proceed on her claims. 

In a published decision, the Appellate Division reversed, dismissing Maeker’s complaint with prejudice. 

Maeker v. Ross, 430 N.J. Super. 79, 97 (App. Div. 2013). The panel was satisfied that the 2010 Amendment to the 

Statute of Frauds clearly directed the enforcement of a palimony agreement only when the agreement is reduced to 

writing and the parties have had the benefit of counsel, irrespective of when an agreement to provide lifetime

support may have been entered. The panel reasoned that the cause of action accrued at the time Ross is alleged to 

have breached the agreement, which was when he abandoned her and broke his promise of lifetime support, a year 

after passage of the Amendment. The panel further noted that Maeker and Ross had the timely ability, before their 

relationship ended, to come into compliance with the Amendment by putting the palimony agreement in writing and 

by securing counsel for that purpose. This Court granted Maeker’s petition for certification. Maeker v. Ross, 215 

N.J. 485 (2013). 

HELD: The 2010 Amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h), does not render oral palimony agreements 

that predate it unenforceable because the Legislature did not intend the Amendment to apply retroactively. 
2

1. The Court’s charge is to determine whether the Legislature intended N.J.S.A. 25:1-5(h), the 2010 Amendment to 

the Statute of Frauds, to apply to contracts formed before its enactment. Statutory language is generally the best 

indicator of the Legislature’s intent. However, when the language of the statute is ambiguous or silent, and yields 

more than one plausible interpretation, the Court may turn to extrinsic sources, such as legislative history. The 

Legislature is presumed to be aware of judicial construction of its enactments and, when the Legislature adopts or 

copies a law from another jurisdiction, the Court presumes that it was aware of the construction given to that law by 

the courts of the other jurisdiction. (pp. 11-12)

2. The 2010 Amendment to the Statute of Frauds, which required that palimony agreements be in writing and that 

both parties have the advice of counsel, marked a significant change in the existing law. Prior to that time, this 

Court held that oral palimony agreements were enforceable because parties entering this type of relationship usually 

do not record their understanding in specific language. Kozlowski v. Kozlowski, 80 N.J. 378, 384-85 (1979). 

Kozlowski and its progeny remained the law until January 18, 2010, when the Amendment took effect. However, 

an indeterminate number of couples may have entered palimony agreements before that date. Neither the plain 

language of the statute, nor the legislative history to the Amendment, resolve the issue of whether the Legislature 

intended to render unenforceable those oral palimony agreements formed before the effective date of the 

Amendment. The reason for the Legislature’s silence may be inferred from its knowledge that courts generally will 

enforce newly enacted substantive statutes prospectively, unless it clearly expresses a contrary intent, because, 

although everyone is presumed to know the law, no one is expected to anticipate a law that has yet to be enacted. 

(pp. 13-16)

3. The Statue of Frauds recognizes that certain agreements may be susceptible to fraudulent and unreliable methods 

of proof and therefore insists that those agreements be reduced to writing and signed. Most courts have held that if 

an oral contract is lawful when made, it is not rendered unenforceable by a later-passed statute requiring that the 

contract be in writing. One reason for not retroactively applying the Statute of Frauds to nullify an earlier-made 

contract is that rendering a previous valid contract unenforceable would impair the obligation of a contract. (pp. 17-

20)

4. N.J.S.A. 25:1-5(h) provides that, effective January 18, 2010, no action shall be brought to enforce a palimony 

agreement unless the agreement is in writing and unless the parties made the agreement with the independent advice 

of counsel. Nowhere in the text or legislative history of N.J.S.A. 25:1-5(h) has the Legislature given any signal that 

it intended the new statute to extinguish previously formed, lawful oral palimony agreements. The long 

jurisprudential history of the Statute of Frauds evidences the strong inclination of courts not to give retrospective 

application to enactments that would annul prior legally authorized oral agreements, unless the Legislature expresses 

a contrary intent. Accordingly, the Court determines that the Legislature, in passing N.J.S.A. 25:1-5(h), did not 

intend to retroactively void the indeterminate number of oral palimony agreements that predated its enactment. (pp. 

20-22) 

5. Accepting the allegations in Maeker’s complaint as true, the Court determines that she has pled a lawful cause of 

action. The Appellate Division erred in focusing on the date the cause of action accrued, instead of the date the oral 

contract was formed, for retroactivity purposes. The Appellate Division suggested that Maeker and Ross were able 

to memorialize their oral agreement in accordance with N.J.S.A. 25:1-5(h) between the date of its enactment and the 

breakup of their relationship. That, of course, presupposes that Maeker had the burden to bring her long-existing 

agreement with Ross into compliance with the new law and that Ross would have cooperated to put the agreement in 

writing and retained independent lawyers for both of them to accomplish that goal. That reasoning is inconsistent 

with the traditional retroactivity analysis that applies to the Statute of Frauds. (pp. 22-23)

6. In light of its holding, the Court does not decide whether equitable forms of relief would be available in the 

absence of such an agreement. The Court returns the parties to the status quo before the Appellate Division reversed 

the family court’s denial of Ross’s motion to dismiss, with one exception. The Court agrees with the Appellate 

Division that Ross’s will, as a stand-alone written document, cannot serve as the basis to prove a palimony 

agreement. A will, by its very nature, is revocable, and therefore, without more, cannot be the basis for a binding 

palimony agreement. The Court does not address any issue concerning the applicability of N.J.S.A. 25:1-5(h) to 

palimony agreements formed after its enactment. (pp. 23-24)

The judgment of the Appellate Division is REVERSED, the complaint is REINSTATED, and the matter 

is REMANDED to the family court for proceedings consistent with this opinion.
3

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA; 

and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN’S opinion. 
1

SUPREME COURT OF NEW JERSEY

A-1 September Term 2013 

072185

BEVERLY MAEKER,

Plaintiff-Appellant,

v.

WILLIAM S. ROSS,

Defendant-Respondent.

Argued May 5, 2014 – Decided September 25, 2014

On certification to the Superior Court, 

Appellate Division, whose opinion is 

reported at 430 N.J. Super. 79 (2013).

Angelo Sarno argued the cause for appellant 

(Snyder & Sarno, attorneys; Mr. Sarno, Jill 

D. Turkish, and Ashley R. Vallillo, on the 

briefs).

Eric S. Solotoff argued the cause for 

respondent (Fox Rothschild, attorneys; Mr. 

Solotoff and Sandra C. Fava, on the briefs).

Richard F. Iglar argued the cause for amicus

curiae The New Jersey Chapter of the 

American Academy of Matrimonial Lawyers (Mr. 

Iglar, John P. Paone, and Dale E. Console, 

on the brief).

Brian M. Schwartz argued the cause for 

amicus curiae New Jersey State Bar 

Association (Ralph J. Lamparello, President, 

attorney; Mr. Lamparello, of counsel; Mr. 

Schwartz, Brian G. Paul, and Elizabeth M. 

Vinhal, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.
2

In Kozlowski v. Kozlowski, this Court for the first time 

recognized the enforceability of a palimony agreement against a 

person who promised to provide future support to a partner with 

whom he shared a marital-type relationship. 80 N.J. 378, 384-85

(1979). A palimony agreement is a contract, and as we 

explained, palimony agreements are usually oral because 

“‘parties entering this type of relationship usually do not 

record their understanding in specific legalese.’” In re Estate 

of Roccamonte, 174 N.J. 381, 389 (2002) (alterations omitted)

(quoting Kozlowski, supra, 80 N.J. at 384). Accordingly, since 

1979, the public has had a right to rely on our jurisprudence 

that oral palimony agreements would be enforced.

The Statute of Frauds requires that certain agreements 

must be reduced to writing to be enforceable. N.J.S.A. 25:1-5. 

Palimony agreements did not fall within the sweep of the Statute 

of Frauds until 2010 when the Legislature amended that statute

to prohibit oral palimony agreements. N.J.S.A. 25:1-5(h). 

In this case, Beverly Maeker and William Ross, although 

unmarried to each other, lived together and shared a maritallike relationship from 1999 to 2011. In the course of that 

relationship, Maeker alleges that she gave up a career and 

devoted herself to Ross, who promised to support her in the 

future. In short, Maeker claims that the two entered into a 

palimony agreement. In 2011, their relationship dissolved, and 
3

Maeker filed an action to enforce Ross’s promise to provide 

financial support. Ross argued that the alleged agreement was 

not reduced to writing and could not be enforced under the 2010 

Amendment to the Statute of Frauds.

The trial court rejected Ross’s argument, concluding that 

the Legislature intended the 2010 Amendment to be prospectively 

applied. The Appellate Division reversed and dismissed Maeker’s 

complaint, holding that the Legislature intended that any 

palimony agreement as of 2010 had to be in writing and that oral 

agreements predating the Amendment were no longer enforceable.

We disagree with the Appellate Division. We find that the 

Legislature did not intend the 2010 Amendment to apply 

retroactively to oral agreements that predated the Amendment. 

In amending the Statute of Frauds, the Legislature was aware 

that historically the Statute has been construed -- absent a

legislative expression to the contrary -- not to reach back to 

rescind preexisting, lawfully enforceable oral agreements. The 

Legislature has given no indication that it intended to depart 

from the traditional prospective application of a change to the 

Statute.

Accordingly, we reverse the Appellate Division and 

reinstate Maeker’s complaint. 

I.

A.
4

This appeal arises from a motion to dismiss a complaint. 

In reviewing whether Maeker has stated a legally sufficient 

cause of action, “we accept as true the facts alleged in the 

complaint.” Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 

625 (1995). From this perspective, we review Maeker’s claims.

In 1998, Maeker and Ross met in Brooklyn, New York, where 

both lived, and the two began a romantic relationship. The next 

year, Maeker moved into Ross’s home while maintaining ownership 

of her condominium where her son from a former marriage 

continued to reside. From the time they began living together 

until their separation in 2011, Ross financially supported 

Maeker, paying for all her living expenses, for the mortgage and

upkeep of her condominium, and for her son’s college education. 

In return, Maeker “performed all of the duties requested of her, 

including cooking, cleaning, companionship, homemaker and 

confidant.” When Ross was ill, she cared for him. They 

traveled together, attended family events together, and moved to

Bedminster, New Jersey, where they rented a house together. 

Ross and Maeker “held themselves out to the world as a family 

unit.” 

During the course of their thirteen-year relationship, Ross 

repeatedly promised that he would financially support Maeker 

over the course of her lifetime. In the latter part of 2001, 

based on those promises, Maeker abandoned her twenty-year career 
5

in the architectural glass industry. In December 2010, Ross 

executed a written power of attorney, authorizing Maeker to 

manage and conduct all of his financial affairs. That same 

month, Ross executed a written will, naming Maeker the executor 

and trustee and leaving sufficient funds “for her comfortable 

support and maintenance to live in the lifestyle that she and 

[he] have enjoyed during [their] years together.” 

On July 1, 2011, Ross ended their relationship, moving out 

of their joint residence. In addition to cutting off all ties

to Maeker, Ross terminated all financial support to her. Maeker 

claims that she “devoted a substantial amount of her adult life” 

to sustaining Ross’s emotional and physical needs and advancing 

his pecuniary interests. She further claims that her efforts 

“were made entirely [on] her reliance of the representations and 

promises of [Ross]” to provide her with lifetime financial 

support.

B.

Maeker filed a complaint in the Chancery Division, Family 

Part, Somerset County, seeking enforcement of the oral palimony

agreement. She also asserted a number of other legal and 

equitable theories of relief, including partial performance as a 

bar to the Statute of Frauds, unjust enrichment, quantum meruit, 

quasi-contract, equitable estoppel, and fraud. 

Ross moved to dismiss Maeker’s complaint on the ground that 
6

it did not state a claim on which relief could be granted,

pursuant to Rule 4:6-2(e). Ross claimed that the 2010 Amendment 

to the Statute of Frauds, N.J.S.A. 25:1-5(h), bars enforcement 

of any oral palimony agreements, even those predating the 

Amendment. 

The family court denied Ross’s motion to dismiss. The 

court observed that, as a rule, the Statute of Frauds is not 

retroactively applied to invalidate a contract entered into 

before its enactment. That approach is taken, the court 

reasoned, to avoid a conflict with “constitutional protections 

against impairment of contracts,” (citing 73 Am. Jur. 2d Statute 

of Frauds § 429 (2010)), and therefore a substantive statute 

will not be given retroactive effect unless the Legislature 

expressly states otherwise. The court found that the 2010 

Amendment did not provide a clear indication that the 

Legislature intended “to eliminate legitimate palimony claims 

that may have accrued over the last thirty years.” In the 

absence of that clear indication, the court concluded that the 

2010 Amendment should not be construed to invalidate a preexisting palimony agreement and deprive Maeker of a cause of 

action. The court permitted Maeker to proceed on all her claims 

and awarded Maeker pendente lite relief and attorney’s fees.

The Appellate Division granted Ross’s motions for leave to 

appeal and to stay the trial court’s decision. 
7

II. 

The Appellate Division reversed, dismissing Maeker’s 

complaint with prejudice. Maeker v. Ross, 430 N.J. Super. 79, 

97 (App. Div. 2013). The appellate panel was satisfied that the

words of the 2010 Amendment to the Statute of Frauds clearly and 

unambiguously directed the enforcement of a palimony agreement

only when “the agreement has been reduced to writing and the 

parties have each had the benefit of independent counsel” -- and 

“irrespective of when an agreement to provide lifetime support 

may have been entered.” Id. at 89. The panel disagreed with 

the family court’s view that “the cause of action for palimony 

accrues at the time the agreement is entered,” which in Maeker’s

case was before the Amendment went into effect. Ibid. 

According to the panel, “plaintiff’s cause of action accrued at 

the time defendant is alleged to have breached the agreement, 

not at the time the promise of lifetime support was purportedly 

made.” Id. at 90. By that reasoning, Maeker’s cause of action 

accrued when Ross “‘abandoned’ her and broke his promise of 

lifetime support” -- a year after passage of the Amendment. 

Ibid. The panel also rejected the family court’s presumption

that Maeker relied on the palimony jurisprudence existing before 

the 2010 Amendment. Id. at 92.

The panel’s position was that Maeker and Ross had the 

“timely ability, before their relationship ended, to have come 
8

into compliance with the Amendment” by putting the palimony 

agreement in writing and by securing counsel for that purpose. 

Id. at 91. The panel rejected Maeker’s argument that Ross’s

execution of a power of attorney and a will memorialized a 

written palimony agreement, finding that the documents did not 

evidence a promise of lifetime support. Id. at 91-92. The 

panel also rejected Maeker’s equitable claims, considering them

“merely different versions of her underlying palimony claim.” 

Id. at 97. The panel declined to address Maeker’s argument, 

raised for the first time on appeal, that the retroactive 

application of the Amendment is unconstitutional. Id. at 92. 

We granted Maeker’s petition for certification. Maeker v. 

Ross, 215 N.J. 485 (2013). We also granted the motions of the 

New Jersey Chapter of the American Academy of Matrimonial 

Lawyers and the New Jersey State Bar Association to participate 

as amici curiae in the case. 

III.

A.

Maeker presented a number of issues in her petition:

whether the Appellate Division erred (1) in applying the 2010 

Amendment to the Statute of Frauds retroactively; (2) in 

concluding that the will, standing alone, did not constitute a 

written palimony agreement consonant with the Statute of Frauds; 

(3) in not addressing the Amendment’s constitutionality; and (4) 
9

in barring her equitable claims, including her claim of partial 

performance. On issues one, two, and four, Maeker essentially 

urges the Court to reverse for the reasons expressed by the 

family court. Additionally, Maeker urges the Court to find that 

the retroactive application of the 2010 Amendment would 

unconstitutionally impair her preexisting contractual rights

under her palimony agreement and, alternatively, would violate 

notions of fundamental fairness articulated in our case law. 

Neither of those issues was raised before the family court.

B.

Ross advances mostly the points made by the Appellate 

Division as reasons for rejecting Maeker’s arguments. Ross, 

however, buttresses the Appellate Division’s conclusion that the 

will did not constitute an enforceable written palimony 

agreement. Ross submits that a will, by its very nature, is not 

a contract requiring consideration but rather is a revocable 

instrument and, therefore, it is not legally binding by a 

testator who changes his mind. Ross also asks this Court to 

decline to address the constitutional impairment-of-contract 

argument, because it was not raised before the family court, and 

to bar Maeker’s equitable claims because they are based on the 

same facts as her palimony claim. More particularly, he argues 

that the partial-performance claim must be denied because it 

would nullify the Statute of Frauds.
10

C. 

Amicus New Jersey Chapter of the American Academy of 

Matrimonial Lawyers urges this Court to reverse the Appellate 

Division. The Academy states that courts generally follow the 

rule that “favor[s] prospective application of statutes” unless 

there is a clear legislative expression to the contrary, 

(quoting Gibbons v. Gibbons, 86 N.J. 515, 522 (1981)). From 

that perspective, the Academy contends that the Legislature has 

given no indication that the 2010 Amendment should be 

retroactively applied to the palimony agreements of unmarried 

cohabitants whose relationships predate the new law. To apply 

the law retroactively, the Academy suggests, would deny support 

to a party who is abandoned after decades of living with a 

partner, raising children together, and intertwining their 

finances and other affairs. The Academy also submits that the 

Statute of Frauds should not be construed to invalidate 

equitable claims, including partial performance.

D. 

Amicus New Jersey State Bar Association also argues that 

the 2010 Amendment should be applied prospectively because the 

Legislature did not express an intent for the law to operate 

retrospectively and because to do otherwise would trench on 

vested rights or result in manifest injustice. Specifically, 

the State Bar contends that the retroactive application of the 
11

statute would violate the express language of Article IV, 

Section 7, Paragraph 3 of the New Jersey Constitution, which 

provides: “The Legislature shall not pass any . . . law 

impairing the obligation of contracts, or depriving a party of 

any remedy for enforcing a contract which existed when the 

contract was made.” Additionally, assuming application of the 

Statute of Frauds, the State Bar maintains that equitable 

doctrines, such as partial performance and promissory estoppel, 

should be available as exceptions to prevent inequitable results

or injustice. 

IV. 

A. 

The primary issue on appeal is whether the Legislature, in 

passing the 2010 Amendment to the Statute of Frauds, L. 2009, c.

311 (codified at N.J.S.A. 25:1-5(h)), intended to render

unenforceable oral palimony agreements that predated the 

Amendment. 

Our charge here is to interpret a statute. In performing 

that task, “[w]e review the law de novo and owe no deference to 

the interpretative conclusions reached by the trial court and 

Appellate Division.” Aronberg v. Tolbert, 207 N.J. 587, 597 

(2011) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13

(2009)). The question is whether the Legislature intended
12

N.J.S.A. 25:1-5(h) to apply to contracts formed before its 

enactment.

The goal of all statutory interpretation “is to give effect 

to the intent of the Legislature.” Aronberg, supra, 207 N.J. at 

597. We first look to the statutory language, which generally 

is the “best indicator” of the Legislature’s intent. DiProspero 

v. Penn, 183 N.J. 477, 492 (2005). Only if the language of the 

statute is shrouded in ambiguity or silence, and yields more 

than one plausible interpretation, do we turn to extrinsic 

sources, such as legislative history. Id. at 492-93. 

Important to our analysis are two other interpretative 

guides. The first is that “‘the Legislature is presumed to be 

aware of judicial construction of its enactments.’” Id. at 494

(quoting N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 

195 n.6 (2002)). The second is that when the Legislature adopts 

or copies a law from another jurisdiction, we presume that it 

was aware of the construction given to that law by the courts of 

the other jurisdiction. See Todd Shipyards Corp. v. Twp. of 

Weehawken, 45 N.J. 336, 343 (1965); see also Bollinger v. 

Wagaraw Bldg. Supply Co., 122 N.J.L. 512, 519 (E. & A. 1939) 

(“The English Workmen’s Compensation act is identical with our 

own . . . . The construction given by the court of last resort 

of that jurisdiction to this statute is helpful, and our 
13

legislature, we may assume, had such construction in mind . . . 

.”). 

In light of those principles, we now turn to the statute at 

issue.

B.

In 2010, the Legislature amended the Statute of Frauds, 

rendering oral palimony agreements unenforceable. N.J.S.A.

25:1-5 provides that

[n]o action shall be brought upon any of the 

following agreements or promises, unless the 

agreement or promise, upon which such action 

shall be brought or some memorandum or note 

thereof, shall be in writing, and signed by 

the party to be charged therewith, or by some 

other person thereunto by him lawfully 

authorized:

. . . . 

h. A promise by one party to a non-marital 

personal relationship to provide support or 

other consideration for the other party, 

either during the course of such relationship 

or after its termination. For the purposes of 

this subsection, no such written promise is 

binding unless it was made with the 

independent advice of counsel for both 

parties.

The Amendment states that “[t]his act shall take effect 

immediately.” L. 2009, c. 311, § 2. The bill was signed into 

law on January 18, 2010, and took effect that same day. See L.

2009, c. 311. The Amendment made two significant alterations to 

the law. It requires that a palimony agreement be in writing 
14

and signed and that the parties have “the independent advice of 

counsel” before making the agreement. N.J.S.A. 25:1-5(h).

The Amendment represents a sea change in the law. To 

understand the extent of that change, we next give an overview 

of the law predating the Amendment.

C.

Thirty-five years ago, in Kozlowski, supra, we observed

that many couples choose to cohabit and live in marital-type 

relationships without marrying. 80 N.J. at 386-88. We

recognized that partners in those relationships are entitled to 

enter into lawful agreements with one another. Id. at 387. We 

held that if one party induces the other to enter or remain in 

the relationship by a promise of support, made either orally or 

in writing, the agreement -- commonly referred to as a palimony 

agreement -- will be enforceable in court. Ibid.; see also

Devaney v. L’Esperance, 195 N.J. 247, 258 (2008) (holding that, 

even in absence of cohabitation, “promise to support, expressed

or implied, coupled with a marital-type relationship” is 

sufficient for palimony agreement).

We acknowledged that “[p]arties entering this type of 

relationship usually do not record their understanding in 

specific legalese,” and therefore a palimony agreement may be 

express or implied. Kozlowski, supra, 80 N.J. at 384; see also

Roccamonte, supra, 174 N.J. at 389. As was made clear in 
15

Kozlowski, “the right to support . . . does not derive from the 

relationship itself but rather is a right created by contract.” 

Roccamonte, supra, 174 N.J. at 389. A palimony agreement could 

be established “not merely by what was said but primarily by the 

parties’ ‘acts and conduct in the light of . . . the surrounding 

circumstances.’” Ibid. (quoting Kozlowski, supra, 80 N.J. at 

384). Additionally, “a general promise of support for life, 

broadly expressed, made by one party to the other with some form 

of consideration given by the other will suffice to form a 

contract.” Id. at 389-90 (citing Kozlowski, supra, 80 N.J. at 

384). 

Kozlowski and its progeny were the law until January 18, 

2010. An indeterminable number of unmarried couples may have 

entered palimony agreements before that date, having the right 

to rely on the law that recognized their personal contracts. 

Whether the Legislature intended to render nugatory those oral 

palimony agreements formed before January 18, 2010, in large 

part, depends on the meaning of the words: “This act shall take 

effect immediately.” L. 2009, c. 311, § 2. We must determine 

whether those words mean that only newly formed palimony 

agreements will have to comply with the Amendment or that all 

palimony agreements, whenever formed, must be in writing and the 

parties to the agreement counseled by attorneys.
16

The plain language of the statute does not resolve the 

issue. Nor does the legislative history to the Amendment, 

specifically the statements appended to the bill by the Senate 

and Assembly Judiciary Committees. Those statements make clear 

that the purpose of the Amendment is to “overturn recent 

‘palimony’ decisions by New Jersey courts by requiring that any 

such contract must be in writing and signed by the person making 

the promise,” Assem. Judiciary Comm. Statement to S. No. 2091, 

213th Leg., 2d Sess. 1 (Dec. 3, 2009); S. Judiciary Comm. 

Statement to S. No. 2091, 213th Leg., 2d Sess. 1 (Feb. 9, 2009), 

but the statements do not suggest that the Legislature intended 

to render existing contracts, previously enforceable, null and 

void.

The reason for the Legislature’s silence may be inferred 

from its knowledge that courts generally will enforce newly 

enacted substantive statutes prospectively, unless it clearly 

expresses a contrary intent. See Gibbons, supra, 86 N.J. at 

521-22. One rationale for the prospective application of 

substantive statutes is that, although everyone is presumed to 

know the law, no one is expected to anticipate a law that has 

yet to be enacted. Ibid. (citing 2 Sutherland on Statutory 

Construction § 41.02, at 247 (4th ed. 1973)).

Historically, the Statute of Frauds has been applied 

prospectively to avoid interfering with vested rights. A review 
17

of the development and treatment of the Statute of Frauds will 

give insight into the Legislature’s intent concerning the 2010 

Amendment.

V.

The Statute of Frauds recognizes that certain agreements

may be “susceptible to fraudulent and unreliable methods of 

proof” and therefore insists that those agreements be reduced to 

writing and signed. Lahue v. Pio Costa, 263 N.J. Super. 575, 

599 (App. Div.), certif. denied, 134 N.J. 477 (1993); see Moses 

v. Moses, 140 N.J. Eq. 575, 584 (E. & A. 1947) (Heher, J.) (“The 

primary design of . . . the Statute of Frauds is to avoid the 

hazards attending the use of uncertain, unreliable and perjured 

oral testimony . . . .”). The New Jersey Statute of Frauds is 

modeled after the English Act for Prevention of Frauds and 

Perjuryes, 29 Car. 2, c. 3, reprinted in 5 The Statutes of the 

Realm 839 (1819), which was enacted by Parliament in 1677. N.J. 

Law Revision Comm’n, Report and Recommendations Relating to 

Writing Requirements for Real Estate Transactions, Brokerage 

Agreements, and Suretyship Agreements 1 (1991). 

The original English statute provided, “That from and after 

[June 24, 1677] noe action shall be brought” to enforce certain 

agreements unless they are in writing. 29 Car. 2, c. 3, § 4. 

The King’s Bench in Helmore v. Shuter, (1678) 89 Eng. Rep. 764 

(K.B.) 765; 2 Show. 16, ruled that the statute should be applied 
18

prospectively. The Helmore case involved an attempt to enforce 

an oral promise in consideration of marriage made prior to 

enactment of the statute. Ibid. The King’s Bench concluded 

that “the intention of the makers of that statute was only to 

prevent for the future.” Ibid. That court stated that “it 

would be a great mischief to explain it otherwise, to annul all 

promises made by parol before that time, upon which men had 

trusted and depended, reckoning them good and valid in law.” 

Ibid. 

Like its English prototype, the original New Jersey Statute

of Frauds provided that “no action shall be brought” on certain 

types of promises and agreements unless they are in some form of

writing. An Act for the Prevention of Frauds and Perjuries § 14 

(Nov. 26, 1794), reprinted in Laws of the State of New-Jersey

133, 136 (William Paterson ed., 1800). Shortly after the 

passage of the original New Jersey Statute of Frauds, the then

New Jersey Supreme Court,1 like the Helmore court, stated that 

“[a] parol promise, made before the statute of frauds, to be 

performed afterwards, is not within it, though the statute says, 

no suit shall be brought, after a certain day, on a parol 

promise, and the suit was brought after that day.” Ford v. 

 

1 Under the 1776 Constitution, the Supreme Court was an 

intermediate appellate court. See N.J. Const. of 1776 arts. IX, 

XII.
19

Potts, 6 N.J.L. 388, 394 (Sup. Ct. 1797). We are unaware of any

New Jersey case that contradicts that interpretation of the 

Statute of Frauds, and indeed the nationwide approach is 

consistent with the Helmore decision.

One well-respected treatise notes that most courts have 

held that if an oral contract is lawful when made, it is not

rendered unenforceable by a later-passed statute requiring the 

contract to be in writing. 4 Corbin on Contracts § 12.20 (rev.

ed. 1997); see, e.g., Zapuchlak v. Hucal, 262 N.W.2d 514, 517 

(Wis. 1978) (“When a statute of frauds question arises, as here, 

several years after the agreement in question was made, the 

statute in effect at the time of the agreement controls.”); 

Hutchings v. Slemons, 174 S.W.2d 487, 490 (Tex. 1943) (approving 

earlier holding that “Statute of Frauds . . . had no application 

to contracts made before its passage”); Ralph v. Cronk, 268 

N.Y.S. 429, 430 (Sup. Ct.) (“It is plain that if the statute is 

to be construed literally, it, by making the contract void from 

the time of the enactment of the statute, impairs the obligation 

of the contract, and it is, therefore, unconstitutional . . . 

.”), aff’d, 271 N.Y.S. 1042 (App. Div.), aff’d, 195 N.E. 139

(N.Y. 1934); Staples v. Hawthorne, 283 P. 67, 70 (Cal. 1929) 

(stating that “[t]he agreement involved in the present action 

was claimed to have been made . . . long prior to the amendments 

[requiring such agreements to be in writing], and, therefore, 
20

its validity is not affected by them”); see also Von Hoffman v.

City of Quincy, 71 U.S. (4 Wall.) 535, 552, 18 L. Ed. 403, 409 

(1867) (stating that “[a] Statute of Frauds embracing a preexisting parol contract not before required to be in writing . . 

. . would impair the obligation of the contract,” and would 

therefore be “forbidden”).

According to Corbin, various reasons have been given for

not retroactively applying the Statute of Frauds to nullify an 

earlier-made oral contract, but one clear reason is that 

rendering a previous valid contract unenforceable “would ‘impair 

the obligation’ of a contract and run counter to the 

constitutional provision.” 4 Corbin on Contracts, supra, § 

12.20 (citing U.S. Const. art. I, § 10).

We now apply those principles to the case before us.

VI.

A.

N.J.S.A. 25:1-5(h) provides that, effective January 18, 

2010, “[n]o action shall be brought” to enforce a palimony 

agreement unless the agreement is in writing and unless the 

parties “made” the agreement “with the independent advice of 

counsel.” Nowhere in the text or legislative history of 

N.J.S.A. 25:1-5(h) has the Legislature given any signal, express 

or implied, that it intended the new statute to extinguish 

previously formed lawful oral palimony agreements. The 
21

Legislature knows how to write a statute that applies

retroactively, as when it amended the New Jersey estate-tax law 

in July 2002 and explicitly made it retroactive to “‘every 

resident decedent dying after December 31, 2001.’” Oberhand v. 

Dir., Div. of Taxation, 193 N.J. 558, 565 (2008) (quoting 

N.J.S.A. 54:38-1(a)(2)).

The long jurisprudential history of the Statute of Frauds 

evidences the strong inclination of courts not to give 

retrospective application to enactments that would annul prior

legally authorized oral agreements, unless the Legislature 

expresses a contrary intent. That interpretative approach is 

partly based on the view that the Legislature, presumably, would 

not intend to pass a statute that might conflict with the 

constitutional guarantee that forbids the passing of any “law 

impairing the obligation of contracts,” U.S. Const. art. I, § 

10; N.J. Const. art. IV, § 7, ¶ 3. See State v. Johnson, 166 

N.J. 523, 540 (2001) (“‘Unless compelled to do otherwise, courts 

seek to avoid a statutory interpretation that might give rise to 

serious constitutional questions.’” (quoting Silverman v. 

Berkson, 141 N.J. 412, 416 (1995))); State v. Profaci, 56 N.J.

346, 349 (1970) (“[T]he presumption is that the legislature 

acted with existing constitutional law in mind and intended the 

act to function in a constitutional manner.”).
22

Here, the Legislature did not clearly, or otherwise, 

express an intent for N.J.S.A. 25:1-5(h) to be applied 

retroactively. The Legislature, we presume, is aware that our

courts will not retroactively apply a new provision of the

Statute of Frauds to void a previously formed lawful oral 

contract in the absence of a clear legislative expression to the 

contrary. Accordingly, we determine that the Legislature, in 

passing N.J.S.A. 25:1-5(h), did not intend to retroactively void

the indeterminate number of oral palimony agreements that 

predated its enactment. Couples entering into oral palimony 

agreements in reliance on Kozlowski did not have to anticipate 

that the Legislature might, in the indefinite future, impose 

writing and counsel requirements that would invalidate their 

agreements.

Accepting the allegations in Maeker’s complaint as true, as 

we must on a motion to dismiss for failure to state a claim, she 

has pled a lawful cause of action: that she and Ross were in a 

marital-type relationship and cohabitating for a number of 

years, that Ross induced her to remain in that relationship and 

make sacrifices on a promise of support, and that he breached 

that agreement.

The Appellate Division erred in focusing on the date the 

cause of action accrued, Maeker, supra, 430 N.J. Super. at 90, 

instead of the date the oral contract was formed, for 
23

retroactivity purposes. The Appellate Division suggested that 

Maeker and Ross were able to memorialize their oral agreement in 

accordance with N.J.S.A. 25:1-5(h) between the date of its 

enactment and the breakup of their relationship. Id. at 91. 

That, of course, presupposes that Maeker had the burden to bring 

her long-existing agreement with Ross into compliance with the 

new law and that Ross would have cooperated to put the agreement 

in writing and retained independent lawyers for both of them to 

accomplish that goal. That reasoning is simply inconsistent 

with the traditional retroactivity analysis that applies to the 

Statute of Frauds. 

B.

In light of our holding that oral palimony agreements 

predating the 2010 Amendment to the Statute of Frauds are not 

extinguished by the new law, we choose not to decide whether 

equitable forms of relief would be available in the absence of 

such an agreement. We return the parties to the status quo 

before the Appellate Division reversed the family court’s denial 

of Ross’s motion to dismiss, with one exception. We agree with 

the Appellate Division that Ross’s will, as a stand-alone 

written document, cannot serve as the basis to prove a palimony 

agreement. This point does not merit much attention. A will, 

by its very nature, is a revocable instrument, and therefore, 

without more, cannot be the basis for a binding palimony
24

agreement. See Bendit v. Intarante, 70 N.J. Super. 116, 126 

(App. Div. 1961) (“A contract operates immediately to create a 

property interest[,] . . . while a will is revocable . . . . A 

contract creates a present, enforceable and binding right over 

which the promisor has no control without the consent of the 

promisee, while a testamentary disposition operates 

prospectively.” (citations and internal quotation marks 

omitted)); 79 Am. Jur. 2d Wills § 35 (2002) (distinguishing 

contracts from wills).

Last, to be clear, we decide only the issue before us. We 

do not address any issue concerning the applicability of 

N.J.S.A. 25:1-5(h) to palimony agreements formed after its 

enactment.

VII.

For the reasons expressed, we reverse the judgment of the 

Appellate Division and reinstate Maeker’s complaint, with the 

one exception noted. We remand to the family court for 

proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; and JUSTICES LaVECCHIA, PATTERSON, 

and FERNANDEZ-VINA; and JUDGES RODRÍGUEZ and CUFF (both 

temporarily assigned) join in JUSTICE ALBIN’s opinion.
1

SUPREME COURT OF NEW JERSEY

NO. A-1 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

BEVERLY MAEKER,

Plaintiff-Appellant,

v.

WILLIAM S. ROSS,

Defendant-Respondent.

DECIDED September 25, 2014

 Chief Justice Rabner PRESIDING

OPINION BY Justice Albin

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST

REVERSE/

REINSTATE/

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 7