New Jersey Common Law Marriage

What Is Common-Law Marriage in New Jersey?

Common-law (or informal) marriage occurs when a couple who have been living together for a long time presents themselves as husband and wife despite never participating in an official ceremony or obtaining a marriage license. Iowa, Kansas, Montana, South Carolina, Utah, the District of Columbia, and Colorado are among the states that permit common-law marriages. Couples who intend to save money or avoid traditional wedding procedures can opt for a common-law marriage. Common-law marriages also provide the parties involved with some marital entitlements and rights, including:

Insurance rights
When a relationship ends, the child custody rights of the children are terminated (if the couple share a kid)
When a relationship ends, alimony and property division occurs
Visitation privileges in prison or jail
Health-care advantages
Rights of heirs
Hospital visitation privileges

Although a common-law marriage may be an alternative to formal marriage, it does have some drawbacks. The following are some of the disadvantages of a common-law marriage:

It may be difficult to establish the existence of the marriage (especially if the spouse is deceased and there is no legal document to prove the existence of the relationship)
Where a divorce happens, the burden of proof falls on the alleging party
Possible loss of the right to survivorship

Couples that want to contract a common-law marriage must meet the local conditions of the state where it is permitted, which may include being of legal age and living together for a set time.

Marriage in New Jersey

In 2019, the marriage rate in New Jersey was at 5.2 marriages per 1,000 residents and a divorce rate recorded at 2.5 per 1,000 married couples. Over 51% of the state’s population is married. A survey of the population aged 15 and older revealed that 49% of the females were married vs. 54% of men in New Jersey. 10% of the female demographic were either separated or divorced, compared to 7% for men.

Does New Jersey Recognize Common-Law Marriage?

New Jersey does not permit common-law marriages. Through N.J.S.A. 37:1-10, common-law marriages in New Jersey after December 1, 1939, are prohibited. However, common-law marriages contracted before December 1, 1939, in the state are recognized. Also, common-law marriages done in states where such marriage is permitted are recognized in New Jersey. Following the U.S. constitution’s Full Faith and Credit Clause, common-law marriages done in those states are recognized in New Jersey.

While common-law marriages are not authorized in New Jersey, other legal union options exist outside of a formal marriage permitted in the state. They include domestic partnerships, cohabitation agreements, and palimony agreements. Cohabitation and palimony agreements establish flexibility and allow couples to choose how they intend to share the rights and responsibilities of their lives. Divorce proceedings are also permitted in New Jersey for couples who have common-law marriages that originated in states where the union is legal.

What is a Domestic Partnership in New Jersey?

The Domestic Partnership Act (2004) and the Civil Union Act (2007) provides for the circumstances that will give rise to a domestic partnership in the state. They include where:

Both partners share a common residence and are jointly responsible for each other’s common welfare, as provided under joint financial arrangements or joint ownership of real or personal property. This can be proved by any one of the following:
Joint deed, mortgage agreement, or lease;
Joint bank account
Designation of one partner as a primary beneficiary in the other partner’s will;
Designation of one partner as a primary beneficiary in the other partner’s life insurance policy or retirement plan; or
Joint ownership of a motor vehicle;
Both partners agree to be jointly responsible for the basic living expenses of one another during the domestic partnership;
Neither partner is married or part of another domestic partnership recognized by New Jersey law;
Up to and including the fourth degree of consanguinity, neither partner is related by blood or affinity to the other;
Both partners, same-sex or opposite sex, over 62 years of age;
Both partners have decided to share each other’s lives in a committed, caring relationship;
Both partners are above 18 years of age
Both partners jointly filed for an Affidavit of Domestic Partnership from their local registrar; and
Neither partner has been in a domestic partnership terminated not less than 180 days before the filing of the current Affidavit of Domestic Partnership, except where one of the partners died.

Before the enactment of the Civil Union Act in 2007, only same-sex spouses over the age of 18 and opposite sex spouses over the age of 62 could register a domestic partnership. The enactment of the Civil Union Act amended this condition so that same-sex or opposite sex couples must be over 62 years old to meet the requirement of the Domestic Partnership Act to register as domestic partners. Domestic partnerships registered before February 19, 2007, are still valid and have the rights attributed to domestic partners.

To register a domestic partnership in New Jersey, the spouses must complete and sign an Affidavit of Domestic Partnership with a Local Registrar of Vital Statistics in any of the municipalities in the state. It costs $28, and a valid means of identification will be required. Upon registration, a copy of the Notice of Rights and Obligation for Domestic Partners will be provided to the couple. Following N.J.S.A. §26:8A-1, spouses in domestic partnerships are entitled to certain rights and benefits accorded to married couples under New Jersey laws. The rights and benefits include the right to decide medical treatment and visit in the hospital, inheritance rights, tax benefits, and public employee benefits.

What is a Cohabitation Agreement in New Jersey?

A cohabitation agreement is an agreement between two persons in a relationship living together that establishes important legal and economic guidelines surrounding their unmarried relationship. It is used to protect their personal and financial interests in the termination of the relationship. It may touch the division of jointly owned property, child support and custody, and partner support.

In New Jersey, cohabitation agreements were recognized in cases like Kozlowski v. Kozlowski, Crowe v. DeGioia, and re Roccamonte. Through those cases, the contractual remedies for certain types of cohabitation disputes were established. They include:

Cohabitation agreements not explicitly and inseparably founded on sexual services are enforceable;
New Jersey public policy does not prohibit unmarried cohabitation relationships as “meretricious”
Partners to a cohabitation agreement are entitled to seek relief from the court, including temporary support from their former partner;
Cohabitation agreements are enforceable against the estate of a deceased cohabitant.

What is a Palimony Agreement in New Jersey?

Palimony describes the support that unmarried persons may request from their partners when their relationship comes to an end. This is where the partner gave up something important for the relationship, like their career or a large sum of income. Like alimony, a palimony agreement provides that financial support will be from one partner to the other when the relationship ends. Palimony agreements are even enforceable against the estate of a deceased cohabitant. The need to enforce this right was caused by the increase in cohabitation without formal marriage situations in New Jersey.

Since 1979, New Jersey law has permitted palimony agreements between partners living together who are not married. It allowed them to bring claims against one another based on a promise of financial support or a promise to share separately owned property. Before 2010, palimony claims for financial support were recognized by New Jersey courts and awarded to long-term partners after the end of their relationship. However, through an amendment of the law, New Jersey restricted the right to request palimony in 2010. Under the new law, a promise to pay palimony is not valid unless the following conditions are met:

The agreement to provide financial support must be in writing
The agreement must be signed by the person that made the promise
The agreement must be made with the independent advice of attorneys or counsel for each party.

No palimony claim can be brought to court unless the agreement is in writing. The important element is that the parties had a written agreement between them to that effect. The court applies its discretion in deciding the claim and ensures an “equitable distribution” is done.

What are the Requirements for a Common-Law Marriage in New Jersey?

In 1939, New Jersey prohibited the creation of common-law marriages in the state. Despite this, New Jersey recognizes common-law marriages established in states that permit the contracting of such marriages. It also allows various types of non-marital relationships in the state, like domestic partnerships, cohabitation agreements, and palimony agreements. Interested partners can register their domestic partnership as long as they fulfill the conditions prescribed under the state’s Domestic Partnership Act and Civil Union Act. Domestic partnerships are registrable at the office of any Local Registrar of Vital Statistics.

How many years do you have to Live Together for Common-Law Marriage in New Jersey?

In New Jersey, common-law marriages are not permitted. The implication of this prohibition is that irrespective of how long a couple stays together under the impression that they are married, it does not mean that they are married. Hence, they do not get the rights of marriages, such as alimony, division of property upon divorce, etc. Spouses that reside together for a long time can only benefit from particular marital rights through domestic partnerships or cohabitation agreements. These non-marital relationships are only valid and enforceable in New Jersey unless a state where the couple intends to move to recognize such relationships.

What Does it Mean to be Legally Free to Marry in New Jersey?

To be legally free to marry in New Jersey implies that a person and their partner must meet the conditions set for contracting a formal marriage in the state. Marriages in New Jersey are considered civil contracts. The requirements for contracting marriages are similar to the requirements for entering binding contracts. They include having the capacity to enter into a contract and being over 18 years old. In addition, the person must not be in another civil union, domestic partnership, or marriage recognized in the state. Marriage between close relatives is prohibited in New Jersey. A marriage can be between persons of the same-sex or opposite sex.

What is Intent to Marry in New Jersey?

The intent to marry in New Jersey is shown by obtaining a marriage license. Marriage licenses are issued at any Local Registrar of Vital Statistics office. The couple must apply at the office and sign the application in the presence of the local registrar. They will need to provide a means of identification, proof of residency by one applicant (where either of them is a resident), Social Security Number, a witness of over 18 years old, and the $28 application fee. Once issued, a marriage license in New Jersey is valid for 30 days. There is a compulsory three-day waiting period between when the license is issued and when the ceremony can be legally performed. It is also important that the license be returned to the issuing office once the marriage has been performed and before the license expiration.

What is an Informal Marriage in New Jersey?

Common-law marriage is called informal marriage in Texas. An informal marriage refers to a marriage contract entered into by two people who live together but do not have a marriage ceremony or register with the state’s marriage registry. While New Jersey law does not permit common-law marriages, they recognize the validity of informal marriages recognized in other states.

How Do You Prove Common-Law Marriage in New Jersey?

There are several circumstances in which a person may be required to prove the existence of their common-law marriage with their partner. This includes getting a divorce, inheriting property, claiming insurance or other benefits, or child visitation or custody claims. To establish the existence of a common-law marriage, it must be proved that both parties must agree to the marriage. The best way to demonstrate this is to provide a written agreement signed by both parties. This agreement must demonstrate their intention to enter into a civil union.

In the absence of an agreement, the person claiming can provide testimonies and supporting documents to prove the marriage’s existence. Among the supporting documents are:

Title deeds demonstrating joint or shared ownership of residential property
Rental agreements or joint leases
Where the common-law spouse is listed as an immediate family member on the other spouse’s employment records.
Bills for shared utility accounts such as gas, telephone, electricity, and joint utility accounts
Driver’s licenses, insurance policies, and identification documents are examples of important documents that demonstrate the couple shares the same address.
Birth certificates naming both spouses as the parent of a child
Loan details, mortgages, and promissory notes demonstrating the couple’s joint financial obligations
Mails sent to both spouses as a couple
Documents demonstrating that one spouse adopted the surname of the common-law spouse

Testimony from witnesses stating that the couples refer to each other as husband and wife can also be presented.

Third-party websites provide an alternative to obtaining public vital records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

The full name of both spouses ((include first, middle, and last names)
The date the marriage occurred (month, date and year)
The location where the marriage occurred (city and county)

How Do You Prove Common-Law Marriage in New Jersey After Death?

Upon the death of a spouse, a widowed partner can establish a common-law marriage by presenting supporting documentation. If a spouse dies, a widowed partner can establish a common-law marriage by submitting supporting documentation. The widowed partner can also provide a statement recognizing the marriage’s existence, with two relatives of the deceased testifying in support. However, this option is only available for common-law marriages formed outside of New Jersey. For the marriage to be recognized in New Jersey, the couple must have met the criteria for a valid common-law marriage in the state where the union occurred.

Do Common-Law Marriages Require a Divorce?

Because New Jersey recognizes common-law marriages validly formed in other states where they are legal, dissolving these marriages requires legal action. The procedure for terminating a recognized common-law marriage in New Jersey is similar to the procedure for divorce for a formal marriage. A divorce from a common-law marriage must be done per New Jersey laws and regulations. This is for issues such as property or asset division, child custody, and spousal support. The grounds for divorce in New Jersey include:

Sexual relations with someone outside the domestic partnership
Desertion for 12 months
Extreme cruelty
Separation for 18 months
Habitual substance abuse for 12 months
Mental illness (institutionalization for 24 months)
Imprisonment for 18 months.

Does a Common-Law Wife Have Rights in New Jersey?

In New Jersey, a common-law wife has the same rights available to wives in a traditional marriage. The state protects the marital rights and benefits of common-law marriages in a state where they are permitted. This includes property distribution rights in the event of death or divorce.

Can a Common-Law Wife Collect Social Security in New Jersey?

A common-law marriage held in another state with laws that support common-law marriage entitles the spouses to collect Social Security benefits. The validity requirement must be met and proof must be provided by submitting a Statement of Marital Relationship Form and an additional statement from a blood relationship. The statement must acknowledge the marriage. The following information is needed from the couple:

The date they started living together as a couple
The city/town and state where cohabitation began
The length of time
The locations where the couple have lived together
Whether the couple have any children
The former names of the couple (if changed)
A list of relatives, neighbors, or employers who are aware of the relationship

Are Common-Law Wives Entitled to Half in New Jersey?

Common-law wives are not entitled to half in New Jersey. In New Jersey divorce cases, the court applies its discretion to ensure the “equitable distribution” of property. It divides marital assets in a way that is fair, not equal.

In dividing property, the court will first identify the assets subject to distribution. Marital assets or properties are properties acquired from the date of marriage to the filing of the divorce. Property that is not marital is considered separate property. They include property acquired before marriage, during the marriage as gifts from third parties or by inheritance, or after the divorce filing. Separate property is not subject to division.

After this, the court will value all marital property for distribution. Then, the court applies its discretion to distribute the assets most equitably. Following the N.J.R.S. § 2A:34-23.1 (2013), courts will consider the following non-exhaustive factors:

The length of the marriage;
The parties’ age, physical health, and emotional health
Each party’s income or property brought to the marriage
The standard of living during the marriage
Any written contract made by the parties before or during the marriage regarding a property division arrangement
The economic circumstances of each party at the time the property division takes effect
Each party’s income and earning capacity
Each party’s contribution to the other’s education, training, or earning power;
Each party’s contribution to the acquisition, dissipation, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as a party’s contribution as a homemaker
The tax implications of each party’s proposed distribution
The property’s current value
The requirement for a parent with physical custody of a child to own or occupy the marital residence, as well as use or own household effects
The parties’ debts and liabilities
The need to establish a trust fund now or in the future to cover reasonably foreseeable medical or educational costs for a spouse or children
The extent to which a party postponed achieving their career objectives, and
Any other factor that the court deems relevant.

How Do You Get a Common-Law Marriage Affidavit in New Jersey?

Marriage affidavits are only granted in states where common-law marriages are legal. Because common-law marriages are not permitted in New Jersey, they cannot be obtained from the state. Although common-law marriage requirements vary by state, most states follow the same general guidelines for what should be included in an affidavit:

The affidavit must include the state where the partners have decided to marry.
Both partners must be of legal marriageable age, according to the affidavit.
The decision date must be included in the affidavit.
Any other license or common-law marriage, including wedding and termination dates, must be included in the affidavit.

When Did Common-Law Marriage End in New Jersey?

Common-law marriages were prohibited after December 1, 1939, in New Jersey. The state only recognizes common-law marriages contracted before that date in the state. It also recognizes common-law marriages done in states where they are permitted.

What is Considered Common-Law Marriage in New Jersey?

Common-law marriages are not allowed in New Jersey. Spouses who refer to themselves as “married” without a formal marriage are not legally married. However, New Jersey recognizes common-law marriages created in states that validate common-law marriages.

Does the Federal Government Recognize New Jersey Common-Law Marriages?

In the United States, only nine states and the District of Columbia recognize common-law marriages. These states include Colorado, Kansas, Iowa, Montana, New Hampshire, South Carolina, Texas, Utah, and Rhode Island. Alabama, Florida, Indiana, Pennsylvania, Ohio, and South Carolina all recognize common-law marriages that occur before a specific date. Each state has its own set of rules regarding common-law marriages. Some states have sui generis laws to determine validity, while others address them under public policy, natural, or positive law.

The federal government recognizes only common-law marriages that occur in states where they are permitted or considered legal. That is, common-law marriages that took place in the aforementioned states. Common-law marriages within these states can result in federal income tax benefits as well as immigration benefits such as obtaining permanent residency.