"If you live in a common-law marriage, are you entitled to the same support and property division as if you were legally married?"

If you are a partner in a common-law marriage, you may be entitled to "palimony." However, the principals of equitable distribution and counsel fee awards do not apply to you. Although common-law marriages and cohabitation situations are occurring more frequently in today's society, the laws do not provide the same protection for persons residing together as those who are legally married. In fact, in instances where parties are residing together to the extent of a cohabitation arrangement, the courts have come to treat these relationships as a contract. One party promises to financially support the other; in exchange the other party performs services such as shopping, housekeeping, companionship, and living as a husband and wife would. According to N.J.S.A. 2A: 34-23, et, seq., "Alimony may be awarded only in actions for divorce or nullity, and equitable distribution is awarded only in actions for divorce."

The New Jersey Statutes do not provide provisions for cohabitants, but case law does. There have been several precedent-setting ruling in this area over the last 30 years. The landmark decision to deal with the issue of cohabitation and support was Kozlowski v. Kozlowski, 80 N.J. 378, 1979. (Coincidentally, the parties had the same last name, although they were never married.) The court treated the relationship between the parties as similar to that of a contract, in which Thaddeous Kozlowski had promised his partner, Erma Kozlowski, to support her for the rest of her life. The parties resided together for 15 years. During their relationship, Mr. Kozlowski became a very successful businessman, while Ms. Kozlowski was a full-time homemaker and raised the children. After their relationship had flourished for six years, the couple briefly separated and entered into a separation agreement. At that time, Mr. Kozlowski enticed Ms. Kozlowski to return to their home by promising to provide for her for the rest of her life. It was clear to both parties that they did not intend to marry. The parties' relationship ended nine years later, at which time Ms. Kozlowski filed a lawsuit in the Law Division. The court found that there had been a contractual relationship between the parties, regardless if it was express or implied, and therefore Ms. Kozlowski was entitled to weekly support. Furthermore, since Mr. Kozlowski had also promised Ms. Kozlowski that he would provide for her support if he predeceased her, she was entitled to future support. The court then created a calculation by which Ms. Kozlowski would receive all future support at the conclusion of the case, by multiplying her monthly support amounts by her life expectancy and discounting it for present-day value. This case, in essence, created the support rights for cohabitants, commonly referred to today as palimony.

The most recent case that established guidelines for common-law marriages is In Re Estate of Roccamonte, in which a cohabitant sued her partner's estate for palimony based on his promise to support her the rest of her life. This case was important in that it established that a cohabitant's rights to sue the estate of their partner and the award of palimony is one of economic inequity. In other words, a partner does not need to be completely financially dependent on the other party. Additionally, because of the promise made by Mr. Roccamonte to Ms. Sopko to support her for her life, it created the idea that support is not discharged by death. Moreover, because he did not make adequate provisions for Ms. Sopko's support after his demise either by way of will or trust, Mr. Roccamonte's estate was liable for providing the support as promised.

Although some headway was made throughout the past three decades, there still are no statutes in New Jersey that would otherwise define the rights of cohabitants. So be careful when deciding to live with someone, as your rights will not be as clearly defined as they would if you were married.

William M. Laufer is the head of the family/matrimonial-law department of Laufer, Dalena, Cadicina, Jensen & Boyd, LLC in Morristown, NJ. He serves on the Morris County Bar Association Early Settlement Panel for matrimonial litigation and is a member of the American Academy of Matrimonial Lawyers and the Association of Trial Lawyers of America. He can be reached at (973) 285-1444. View his Divorce Magazine profile.