Child custody, child support, and asset division can be complicated, especially if a couple is unmarried. In this podcast, New Jersey family lawyer Bari Zell Weinberger discusses how a domestic partnership agreement can save time and headaches in the event of unmarried partners in New Jersey with children decide to split.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine Guest speaker: Bari Zell Weinberger, Certified Matrimonial Law Attorney Bari Zell Weinberger is a renowned family law expert and the founder of Weinberger Divorce & Family Law Group, a family law firm with offices throughout New Jersey. She is Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney, a certification achieved by only 2% of the attorneys in New Jersey. Bari is also an experienced family law mediator, a published author, and a frequent media contributor on divorce and family law for both local and national audiences.
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What happens when two committed partners may have lived together for years or even decades but now they’re making the decision to end their relationship? Legally speaking, how is the end of this kind of domestic relationship different from the end of a marriage? When these long-term relationships end it can sometimes be an unfortunate crash course in the legal difference between marriage and cohabitation. Couples who marry legally obtain tax breaks, inheritance rights, and various spousal benefits, including health insurance. Marriage also confers certain legal rights to property and support in the event of divorce. Should the union end, spouses have a right to divide their property under New Jersey’s equitable distribution law, which can apply to their home or their acquired property, including retirement accounts. Spouses also have the right to receive support in the form of alimony should the spouse be able to show the need for it. Unmarried partners do not have these same rights, which can cause a great deal of stress and turmoil if the relationship ends. However, the law does provide a way for these couples to take steps to avoid catastrophe and safeguard themselves.
What about common law marriage? Does this afford some rights? There is a lingering misconception that living together for a certain length of time in New Jersey, such as seven years, can trigger a common-law marriage that provides certain protections. There are a very small handful of states that still offer some type of common-law status, but New Jersey is not one of them. Common-law marriage rights were outlawed in New Jersey all the way back in 1939. There is one possible exception to this. If a cohabiting couple lived in a common-law state and held themselves out as married and then moved to New Jersey where their relationship ended, the couple could, in theory, ask the New Jersey courts to recognize their common-law marriage. Under what we call the full faith and credit clause of the U.S. constitution, a common-law marriage validly formed in one state is technically valid throughout the United States. However, be aware that providing to the courts that an out-of-state common-law marriage had been established can be extremely difficult.
With these differences and risks in mind, let’s discuss the steps unmarried partners can take to secure their future. You said that unmarried partners don’t have a legal obligation to financially support each other after they break up. Is there anything they can do to obtain some form of spousal support, especially if one stayed at home while the other pursued a career? Unmarried partners have the option of establishing a type of legal cohabitation agreement that can outline terms of support should the relationship end. This agreement is more commonly known as a palimony agreement. Palimony can be especially important if one partner gave up their career to care for the kids or for some other reason, or there is a large disparity in income between the partners. A palimony award is paid out in a lump-sum amount rather than in monthly amounts as alimony typically is. But partners have their ability to negotiate exact terms that they feel comfortable with. While alimony is based upon marital obligations, palimony is purely contractual. It’s a promise to provide support upon the conclusion of a relationship. New Jersey law requires palimony agreements to be in writing. Furthermore, in order for the agreement to be deemed legally valid, New Jersey law also requires each party to have independent legal counsel at the time that the contract is created.
What about assets? Let’s say the unmarried couple owns a house together or has purchased other property together. What can they do to ensure that their contributions, financial and otherwise, to that property will be recognized and the asset divided fairly in the event that the relationship ends? Asset division makes up a large part of the divorce process, especially when it comes to the family home, which can often be the couple’s largest asset. Because a cohabitating couple doesn’t have this divorce process waiting for them to ensure that assets are equitably distributed, it’s in their best interest to take steps to create a cohabitation agreement to address what will happen to these assets in the event of a breakup. For example, if the couple buys a house together and there’s a dispute over it, generally the courts under contract law can order the property to be sold and its profits split. A cohabitation agreement, however, can spell out exact terms that the couple agrees to and what should happen to the home in the event of an eventual breakup. This can include assigning ownership to one of the partners, requiring the other partner to buy out the partner who will stay in the home, an agreement that the home will be sold and division of the proceeds or any other arrangement that they’re comfortable with. For example, if one partner put in less money for the down payment upon purchase, but put in a great deal of what we call “sweat equity,” renovating the house and partaking in its upkeep, this can be taken into consideration when we’re writing up the terms of a cohabitation agreement. Cohabitation agreements can spell out terms for other types of joint property that you’ve acquired during your relationship as well, from cars that you may have purchased together to artwork and even pets. Cohabitation agreements can also make it clear which property is not going to be jointly acquired and ultimately divided. Cohabitation agreements can even create terms that apply to how partners operate their household on a day-to-day basis, including how to manage and pay for certain expenses such as housing, food, child care, and utilities. Again, it’s important to note that these agreements must be in writing and the parties must consult with individual independent counsel in order for the agreement to even be considered enforceable.
Can a domestic partnership agreement address joint bank accounts? Yes, it can. A joint bank account is something that can be accessed by another party. If either partner made a decision to take all the money from the bank account, technically they could. A partnership agreement can lay out terms for how to divide the account. Should it be a 50/50 split, for instance? Should it be according to how much either partner contributed from the beginning? Working out terms can prevent a lot of headaches down the road. Be prepared.
What about joint credit cards and other debts the couple may have acquired? You’re not responsible for your partner’s debts just because you live together. However, you are responsible for debts that you have agreed to pay. If you and your partner have a debt in both of your names, like a joint credit card, then the issuing company can hold both of you responsible for paying for it. A cohabitation agreement can create terms for what happens to credit card debt and other debt at the end of the relationship. However, think of the picture before agreeing to any terms. If the debt on the credit card is truly 50/50, you may be tempted to agree to simply each pay half of the credit card bill each month until the debt is paid off. But what if your ex stops paying their half at some point? This will affect your credit and lead to late fees and interest or penalties and you may find yourself paying the entire bill to keep the creditors off your back. One way to avoid this kind of worst-case scenario is to have an agreement that stipulates all joint credit cards must be closed out and paid off according to a certain division, whether it be 50/50, 70/30, or even one of you absorb the 100% in accommodation for some other term if the relationship ends. For example, the agreement could stipulate that proceeds from the house will pay off all of the joint credit card debt before it’s even divided.
What about children in the relationship? How exactly does child custody and child support work when the partners are unmarried? Parents have a right to custody and parenting time whether or not they were ever married. Children have rights to receive support from their parents regardless of the parent’s relationship status. Parents can file for child custody and child support in the family courts and have a judge hear their case and issue an order. Or parents can use an out-of-court method such as mediation. In mediation, the parents work with a neutral third-party mediator to come up with suitable child custody and parenting time agreements. The mediator can also take them through formulas contained in the child support guidelines to arrive at an appropriate child support award. To determine which child custody arrangements might be most suitable for you and your children, speak with a family law attorney who can make recommendations based on your specific and unique situation. For example, do you both expect the children to live with you and do you both expect to participate in medical and legal decisions for your children? Then a shared physical and legal child custody arrangement may be best for you.
If one of the partners is not a biological parent to the child being raised by the couple, do they have any rights in terms of parenting time after their relationship ends? If the partner has not adopted the non-biological child, but has essentially functioned as a parent to the child, they can make a case in the courts for being a psychological parent. The courts look at certain factors in determining this, including whether the child was encouraged to view the partner as a parent or whether the partner took on parenting duties such as taking the child to the doctor. If the judge agrees that you are, in fact, a psychological parent, you have the same rights and responsibilities as a biological parent or an adoptive parent, meaning that you can, in fact, file for child custody, parenting time, or child support.
How can people in domestic relationships learn more about the issues we’ve been talking about and their rights and responsibilities under New Jersey law? I encourage listeners to download our free guide, “Splitting Up When You Aren’t Married. Five Steps to Safeguarding Your Future,” for details on everything we’ve discussed today plus more tips on relationship planning for unmarried couples. Please find it at wlg.com/downloads.
What special help does your firm offer to prospective clients dealing with palimony, parenting time, and other potential domestic partnership issues? If you’re seeking a trusted family law attorney with experience setting up palimony and cohabitation agreements, and custody and child support arrangements as well, please contact us today to set up your free consultation.Back To Top