Botis v. Estate of Kudrick, ___ N.J. Super. ___ (App. Div. 2011). January 18, 2010 was the effective date of an amendment to the Statute of Frauds that includes palimony agreements among the types of agreements that must be in writing and signed by the parties to be charged in order to be enforceable. The question in this case was whether that amendment applies retroactively. Applying the de novo standard of review to a trial level decision that the statute was not retroactive, since that issue is purely a matter of law, Judge LeWinn’s opinion for a unanimous panel of the Appellate Division determined that the amendment was not retroactive.
The amendment itself provided that “shall take effect immediately.” Thus, the Legislature provided no indication that retroactivity was intended. Absent a clear indication of legislative intent, the courts have followed a rule that “favors prospective application of statutes.”
Moreover, the legislative history stated that the amendment was designed to overrule several specifically identified court decisions regarding palimony. Judge LeWinn noted that overturning caselaw, as opposed to rectifying or clarifying statutory law, was not curative or ameliorative so as to call for retroactivity. Besides, there had not been a prior palimony statute to “clarify” or “rectify.”
Finally, the expectations of the parties, another key consideration in retroactivity/prospectivity analysis, were formed years earlier, when the agreement was entered into. At that time, the caselaw “supported a mutual expectation that [the parties’] agreement was enforceable without regard to a writing executed after consultation with an attorney.” Thus, the expectations of the parties did not favor retroactivity either.