New Jersey is not among the few states that recognize common law marriage. Therefore, unwed couples do not share the same rights as married couples. However, domestic partners could be entitled to palimony and other rights in some situations.
What Is Common Law Marriage?
Common law marriage is a marriage formed without a marriage license or other requirements for legal marriage under state law. Under English common law, marriages were legal if:
- The parties were over 18 years old;
- Intended to marry each other;
- Cohabited for a specific period; and,
- Presented themselves as a married couple.
Since the United States began as a British colony, common law marriages were recognized. However, most states have abolished common law marriage. Only a few states recognize common law marriage, and each sets its own laws to define it.
What Is New Jersey’s Law Regarding Common Law Marriage?
Common law marriages have been void in New Jersey since December 1, 1939. However, common law marriages that occurred before that date remain valid.
Nonetheless, there is an exception. New Jersey recognizes common law marriages validly created in another state. For example, South Carolina recognizes common law marriages. Therefore, if you are common law married under South Carolina law, New Jersey recognizes your marriage.
Problems With Trying To Form Common Law Marriages in New Jersey
Couples might cohabitate without getting married. They might consider themselves married. However, because New Jersey does not recognize common law marriage, the couple does not have the same rights as a legally married couple.
For example, unwed couples cannot provide health insurance for each other. They do not have inheritance rights under New Jersey intestate laws. In addition, unwed couples cannot receive Social Security retirement or disability benefits.
Courts will not award alimony or divide property for an unwed couple. However, some domestic partners could receive palimony if they meet the strict requirements under New Jersey laws.
What Is the Law Regarding Palimony in New Jersey?
Palimony is financial support paid between parties in a non-marital relationship. It is an agreement between domestic partners.
New Jersey recognized oral and written palimony agreements between partners. Oral agreements could be express or implied agreements. However, palimony laws were changed in 2010.
According to Section 25:1-5(h) of the New Jersey Statutes Annotated (NJSA), palimony is a contract that must be in writing to be enforceable. For a court to award palimony to a non-married couple, the following requirements must be met:
- The parties are not married;
- The parties lived together;
- The parties have a written palimony agreement, cohabitation agreement, non-marital agreement, or other signed contract that promises to provide financial support;
- The parties were represented by different attorneys who advised the parties about their rights regarding the agreement; and,
- The party paying alimony must have signed the agreement without coercion or duress and in good faith.
The change in the palimony laws is not retroactive. Therefore, if your palimony agreement was entered before the law changed in 2010, it could still be enforceable.
Unwed Couples Can Enter a Cohabitation Agreement in New Jersey
Palimony agreements deal with financial support after an unwed couple separates in New Jersey. However, couples can enter a cohabitation agreement to settle other issues in case of separation.
Cohabitation agreements are non-marital agreements that grant the parties some of the same rights a married couple would enjoy. A cohabitation agreement can address issues related to the following:
- Financial support
- Property division
- Powers of attorney
- Inheritance
- The right to make medical decisions
- Co-owned property
- Division of debts
Cohabitation agreements can also address personal matters if the agreements do not violate public policy. A cohabitation agreement can include terms similar to a parenting plan for child custody, but the terms must not violate public policy and can be voided if a judge finds the agreement is not in the child’s best interest.
A lawyer should represent each party to advise them of their rights and responsibilities under the cohabitation agreement, especially in regard to the financial consequences.
What Are the Requirements for a Valid Marriage in New Jersey?
You must apply for a marriage license with the New Jersey Department of Health. You must be at least 18 years old and not a party to a domestic partnership, civil union, or marriage in New Jersey or recognized by the state. There is a 72-hour waiting period before the Department issues the marriage license.
After the officiant marries the couple, the officiant and two witnesses sign the marriage certificate. The marriage certificate must be filed with the office that issued the marriage license.
Get Legal Advice Before Entering a Marital Agreement
Marital agreements can have significant financial consequences for married and unwed couples. Therefore, before entering any agreement, it is wise to seek legal advice from an experienced Monmouth County family law attorney.
Contact an Experienced Red Bank Family Law Attorney at The Law Office of Jennifer J. McCaskill, LLC for Legal Advice
To learn more and get the help you deserve, call our divorce & family law firm in Red Bank. NJ at (732) 747-1882 or contact us online today.
You can also visit our law firm at 157 Broad St #111, Red Bank, NJ 07701.
