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How Do You Divorce When You’re in a Common Law Marriage in New Jersey?

common law marriage new jersey

The term “common law marriage” refers to a long-term relationship, where the couple has cohabitated, held themselves out to the public as a married couple and referred to one another as spouses, but never obtained a marriage license or had a marriage ceremony. In the past, many states, including New Jersey, considered a common law marriage equivalent to marriage, with all the same legal rights and obligations that applied to officially married couples. Unfortunately, you and your partner have decided to divorce. For more information on how the Garden State treats common law marriages as well as your rights and responsibilities during a divorce, please read on, then contact an experienced New Jersey virtual divorce lawyer.

Does New Jersey still recognize common law marriage?

The Garden State eliminated common law marriages back in 1939. For the state to consider a couple “married,” the couple has to obtain a valid marriage license and have a ceremony performed by an authorized person, society, institution or organization to solemnize the marriage. Failure to do either renders a “marriage” void. Thus, the couple must proceed as if they had never married and apply a different procedure for the division of property, alimony and arranging child custody, visitation and child support.

However, New Jersey is one of four states that still recognize civil unions. If the couple entered into a civil union, they may more or less proceed as if they were a married couple.

Does common law marriage affect child custody, visitation and child support in New Jersey?

Except in cases where only one partner is the legal parent of the couple’s children, a couple’s marital status will not factor into the court’s determination of child custody, visitation and child support. When only one partner is the legal parent of the children, the nonlegal parent has no rights to any of the above, nor can the court order them to pay child support.

Can you get alimony when a common law marriage dissolves in NJ?

Prior to 2010, New Jersey courts routinely recognized these sorts of relationships and awarded long-term partners financial support after the termination of the relationship. In January 2010, the New Jersey Legislature restricted these financial awards, also known as “palimony,” requiring the promise/agreement to provide financial support to be:

  • In writing
  • Signed by the person making the promise, and
  • Made with the independent advice of counsel, i.e. each party must have their own attorney representing his or her interests in the drafting of the agreement

Unless you meet these requirements, courts will generally not grant palimony claims.

How do New Jersey divorce courts treat property acquired by unmarried couples?

Ordinarily, the equitable distribution of property arises only in divorce cases. When unmarried couples ask the court to divide property, they will have to rely on their discretion to reach an equitable division. While the state does not provide courts with a specific set of factors, they often consider whether the unmarried couple:

  • Established a joint enterprise or joint venture during their relationship, i.e. they lived as a couple, resided together, had joint accounts, joint credit cards and joint savings
  • Jointly purchased property, i.e. they both had their names on any cars and homes
  • Had equal interests in the property

“Equitable” does not always equate to “equal,” but courts strive for fairness. In some instances, the courts may order the couple to sell the property and divide the proceeds equally.

A skilled Ocean County divorce attorney can answer any additional questions you may have.

Contact our experienced Ocean County firm

If you need a divorce and family law attorney in Ocean County, New Jersey,  contact the Law Office of Sarina Gianna, LLC today to schedule a consultation.