Exploring Cohabitation Basics in New Jersey
Cohabitation is a term that plays a prominent role in the legal lives of the State of New Jersey. Simply put, cohabitation is defined as the joining together in an interpersonal relationship for a prolonged period of time but without legal or religious sanction. This definition holds up in most states throughout the country, including here in New Jersey.
Unmarried persons, be they heterosexual or homosexual couples , cohabit regularly. The precise circumstances vary from couple to couple but often times parties who cohabitate share a place of residence and act like a married couple but never entered the institution of marriage to formalize their bond. Another definition for cohabitation is the "spouse substitute relationship" where parties may not have committed to a marital relationship but they have nevertheless committed to the idea that they are going to live together as if they were married. In all intents and purposes, this means that they share the trials and tribulations of running a home. While the State of New Jersey is generally neutral in evaluating the relationship of cohabitating parties, their conduct can have a significant impact on family matters lawsuits.
Rights of Unmarried Couples in the Eyes of the Law
The legal rights of unmarried couples who cohabitate in New Jersey are tenuous at best. Unmarried people claim a property interest in assets titled in the names of their partners by satisfying the heightened burden of establishing that the assets were purchased for joint use and purpose, that they contributed to the acquisition or payment of such assets, or that the assets were obtained with the innate understanding between the parties that they intended to share equally in the property. In limited circumstances, such as where one partner financed the purchase of a home, the law allows for the imposition of a resulting trust in favor of the partner that expended funds. In such instances, the property is deemed to be held in constructive trust for the benefit of the coupling partner who paid for the asset.
Cohabitating couples in New Jersey have no inherent property right in the assets of their partner. However, certain courts in New Jersey have awarded couples sharing long-term stable relationships "palimony" – payments made under an agreement or implied promise between two persons who live together as a couple of the same or opposite sex to provide support and services for the other’s benefit." Courts have recognized palimony rights in agreements or promises made during the relationship but not in imposed alimony obligations. For the consideration of palimony, the party seeking to establish the right must show by clear and convincing evidence that the parties either entered into an agreement or made a promise for support, that the expected term of cohabitation was indefinite, and that the promise was made in exchange for the promisee’s promise to provide support.
New Jersey is divided on how the courts will enforce palimony agreements. While appellate opinions have twice overturned lower court rulings awarding palimony, the New Jersey Supreme Court has not formally approved or disapproved of palimony claims. In 2009, the state legislature promulgated a statute precluding the payment of palimony unless it was made in writing. But between 2009 and 2010, several county court judges rejected the statute’s enforcement, thereby creating a conflict between the multiple appellate and trial court decisions. Eventually, in 2010, the New Jersey Supreme Court overruled all previous decisions and declared the statute unconstitutional because it impermissibly redefined marriage and divorce in violation of the rights guaranteed by the New Jersey Constitution to contract.
Agreements Between Unmarried Partners in Cohabitation
Cohabitation agreements are contracts between unmarried partners that lay the groundwork for expectations and obligations in a non-marital relationship. They are akin to prenuptial agreements between married spouses. These agreements can help protect both parties from future disputes by setting forth their understanding of many issues that can arise during the course of the relationship.
Each cohabitation agreement is unique to the partners involved. However, some issues that may be addressed in the agreement are the following:
We often see agreements that govern ownership and disposition of a future marital residence that either has been, or will be, purchased. In many instances, the residence may never be purchased, and clients find themselves with an agreement that does not represent their current life situation. Other agreements do provide for what happens when the residence is sold, which can save a great deal of headaches later on.
Other agreements deal with how assets will be divided upon separation as to assets that were acquired during the relationship. For instance, a couple may own a number of valuable works of art that they purchased over the course of the relationship. A cohabitation agreement may provide for how the art will be valued and split between the partners in the event of a breakup.
Finally, some agreements provide for visitation and child support if the couple has children and separates. This provision can be beneficial in the event that the partners separate. Otherwise, child support matters will be governed by the New Jersey Child Support Guidelines.
Effect on Child Custody and Financial Obligations
The decision to cohabitate with a partner prior to or after marriage can influence arrangements for child custody and child support under New Jersey law. Unmarried couples may have agreed to pay child support to a custodial parent outside of the court system, leaving it as a private arrangement. However, remarriage by one of the parents, or a cohabitation relationship that arises, signals a change in circumstances that may require a child support modification.
A parent receiving child support may object to a payor parent’s request for cohabitation. Courts base any decision to modify child support on the current needs of the children, not merely on the parent’s ability to pay.
Cohabitation by a parent with their new partner may impact the ability to pay support. The Courts often consider a parent’s new partner as an economic resource. The parent’s share of household expenses with his or her new partner could impact child support. The extent to which support is impacted depends on the relationship. In other words, there is no set length of time that a cohabiting relationship must be in place to affect the amount of child support that one parent can pay.
While child support obligations change if one of the parents remarries, cohabitation is a separate issue. N.J.S.A. 2A:34-23 provides that the payment of child support will not terminate because of marriage or the substantive equivalent — cohabitation. Cohabitation arrangements do not automatically increase child support payments but may be reviewed by the Court on a case-by-case basis.
In some cases, child support can increase as a result of cohabitation. For example, if living together makes the parties economically equivalent to married persons , a Court may grant relief to a parent who can no longer pay child support. Cohabitation may not be considered automatically equal to marriage, as opposed to remarriage, because the obligations of cohabitation do not have force of law. A cohabiting parent must be prepared to offer definitive evidence of actual expenses and the relevant terms of the cohabitation agreement.
If one parent is required to pay child support, courts have discretion to add to the support payments the amount that a new partner contributes to household expenses. This is not an automatic adjustment. If one parent pays more than their fair share of housing expenses, distributed fairly among all inhabitants of the property, a court will reduce the parent’s child support obligations by the equivalent of the other person’s share of the fair expense of housing.
An example of how cohabitation may increase child support is if two cohabitating parents purchase a home in their joint names because of increased income and financial stability. In this case, they will be jointly responsible for paying for the home. A judge will evaluate the parent’s proof of new expenses with the existing child support payment. If the new housing payment exceeds the previous housing expense, the judge will reduce the parent’s child support payment by the amount of the old housing expense. A judge’s decision is always based on the intention of achieving economic equity between the child’s parents.
Courts will always consider the evidence presented and determine if child support should be increased based on cohabitation. This is unique to each case, as the intention of the law is to ensure the best interests of the child are the basis for any decision.
Alimony Considerations in Cohabitation Scenarios
To establish or modify any alimony award, including cohabitation can be established based on evidence that a new economic lifestyle has been created by the parties to the marriage. In addition, alimony can also be modified if one party proves that the change should have been made previously, made retroactive to the date the proof was offered. As to whether the new economic lifestyle was established, in determining cohabitation, courts will look at the fact, nature and length of the relationship. In deciding whether an alimony obligation should be modified or extinguished, courts will rely on the statutory factors set forth in NJSA 2A:34-23(j) which among other things addresses any free gifts being provided by the new partner and whether there was any intent to share assets and expenses.
As to the date in which cohabitation can be said to have begun, courts focus on whether the party in receipt of alimony is holding him or herself out as married to someone else and whether he or she is in a joint relationship with someone else. Most importantly, courts look at whether the party receiving alimony’s relationship is permanent and more than an isolated social transaction. Courts also want to know whether there is a psychological and physical relationship akin to two persons living as husband and wife. In Lindner v. City of Jersey City (App. Div. 2001), the court stated that evidence of a new relationship, standing alone, will not support an automatic alimony termination. A New Jersey Appellate Court subsequently held in Baker v. Baker (App. Div. 2009) that all issues regarding alimony termination should be addressed on the merits. In this case, the husband alleged that the wife violated their property settlement agreement by cohabitating with a new boyfriend. The court held that the question of whether the wife is cohabitating with her boyfriend was a threshold issue that could result in termination of alimony provided that the divorce agreement stated that a change in cohabitation could be deemed a change-of-circumstances. In general, courts often require objective proof of the change of circumstances before a full plenary hearing on the issue is held.
While it is clear that a new cohabitation may impact on an existing alimony obligation, the fact that a party is living with someone else will not necessarily terminate an existing obligation where the terms of the parties’ judgment or agreement so provided. Absent that provision, motions to modify or terminate alimony based on cohabitation should be filed as a motion for a change of circumstances and not a preemptive termination. An important consideration on cohabitation modification motions is that in determining whether an alimony obligation should be modified or terminated, courts generally apply the same standards that apply to an initial request, namely, whether the supporting spouse has met his or her burden of establishing an unanticipated and reasonable change in circumstances. When dealing with this type of application, it is good practice to first provide the supporting spouse with a Request for Statement of Net Worth (RSNW) to determine if his or her economic status has been impacted by the cohabitation, either positively or negatively. The important take away from applying for modification or termination of cohabitation is that alimony modification or termination will be deemed found where the payee is found to be substantively or materially cohabiting with another person.
Cohabitation and Dispute Resolution: Legal Support Options
In the face of a dispute, whether it involves the division of property, custody of children, or other issues, the best advice is often to attempt to resolve the problem out of court. Couples may be able to resolve conflicts through private mediation or a similar form of alternative dispute resolution. Mediation does not require the parties to reach an agreement , but it does help them communicate and narrow issues ahead of litigation. This can save time and money down the road. It also allows the parties to maintain a certain level of control over the outcome of their case rather than leaving it entirely to the court’s discretion.
If informal mediation fails, or if the matter involves a significant legal issue that may require the court’s intervention, it is important to seek legal advice from a lawyer experienced in cohabitation and family law in New Jersey. An experienced attorney can help you understand your options, guide you through a contested legal process and protect your rights and interests.