Overview of Cohabitation Laws in New Jersey
Cohabitation, the arrangement in which couples live together without being legally married, has become increasingly common in recent years. As a result, understanding the laws that apply to cohabitating couples is essential for individuals who share their lives with an unmarried partner. In New Jersey, cohabitation laws have implications for not only property division and spousal support in the event of a couple’s separation but also for establishing custody arrangements and child support for the children of cohabitating couples.
Cohabitation statutes vary by state, and New Jersey law defines cohabitation very specifically. Under New Jersey law, when determining spousal support, a judge will consider whether the dependent spouse is in a "cohabiting relationship" under New Jersey alimony law and if the court finds proof of a cohabiting relationship, will reduce or terminate alimony.
New Jersey law uses different definitions depending on what situation is at hand. When it comes to determining property rights, a person may petition to the court for one of two things:
A judge will consider many factors in determining whether any of the comingling rules have been violated , including:
The violation of any of these rules or agreements may result not only in the loss of profits, but possibly fines and other penalties.
Cohabitation can have big implications for those with children. In the case of custody and visitation, the law requires child visitation agreements to be in writing. The same goes for child support obligations, which also require formal, written agreements.
Cohabitation can impact property and finances as well. When it comes to dividing property, for example, the law requires that all forms of property in common be divided fairly. Courts typically split joint property into two equal portions, but circumstances in each case may affect how this property is divided. The courts assume that all partners contributed equally to property purchases or improvements, and if you have evidence to the contrary, your chances of receiving more than half are that much better.
It is important that residents of New Jersey who are cohabitating understand the ramifications of simply sharing living expenses, as they can affect a number of aspects of your life, including finances and family obligations.
Cohabitation versus Marriage: The Legal Differences
In New Jersey, the legal differences between cohabitation and marriage are stark, despite some perception that the two relationships are similar or nearly identical. A marriage is a recognized legal contract that exists independently of the individuals themselves, which carries with it certain obligations and restrictions. Cohabitation, on the other hand, is simply living together as a couple without the contractual benefits of marriage or the legal complications that stem from it.
Among the most significant differences between cohabitation and marriage in New Jersey is the lack of support obligations that may be sought by a cohabiting partner if the relationship should end. When a marriage ends, spousal support obligations may be sought by the dependent spouse. Because marriages are sacrosanct, courts have broad discretion to award alimony to help provide the same standard of living that the dependent spouse enjoyed during the marriage to help bring the parties close to that same economic status post-divorce. By contrast, cohabitation lacks traditional support objectives of such awards. Payments for rent, groceries and shared expenses are generally not written into the "contract" of living together, so a cohabiting partner does not have the ability to ask a court for support to that end.
Additionally, several statutory obligations are attached to marriage that do not exist for cohabiting partners. Where married couples can file joint tax returns, cohabiting couples must file separately. Similarly, married couples share financial accountability during the course of their marriage in areas like pensions, social security and medical insurance. Cohabiting couples do not enjoy the benefits of these consolidated services.
Cohabitation does not provide the same broad legal rights as marriage or grant your children the same benefits as having a married couple for parents. If the relationship ends, your ability to seek legal remedies to collect child support and child custody provisions rests on your ability to seek Legal Parentage of your children. If you are not considered a Legal Parent, you cannot make such applications. On the other hand, married couples can seek divorce and child custody provisions with respect to their children even if they are not biological parents.
You appear to be familiar with the ramifications of formalizing a relationship through the bond of marriage, but what about the alternative? Cohabitation, by definition, is a state of being in which an unmarried couple lives together. There are no specific laws governing cohabitation in New Jersey, but there are many rights and obligations at play throughout the relationship. For example, people are frequently surprised to learn that cohabitation is grounds for divorce with respect to equitable distribution in New Jersey. In cases where cohabitating partners own property together, equitable distribution principles apply just as they do with married couples, making the determination of "ownership" complicated.
Cohabitation’s Effect on Alimony
The New Jersey Cohabitation Law provides judges with broad discretion to modify or terminate alimony awards if a payor cohabitates with a new partner. Cohabitation with a person of the opposite sex does not by itself give rise to a determination that the former spouse is cohabitating under the statute, although it is a factor that the Court will examine as part of determining whether a payor of alimony should have their obligation modified or terminated.
After years of inconsistent case law, the Supreme Court of New Jersey provided a more concrete test for determining when an alimony obligation can be modified or terminated based upon the claim of cohabitation. Lampert v. Roberti, 238 N.J. 230 (1994). When the validity of an alimony obligation is challenged based upon cohabitation, the person that will be receiving alimony has the burden of proving that the foundational facts underlying their alimony claim are not altered by the nature of the relationship between the payor and the alleged cohabitant. If the foundation of an alimony award is altered by the fact that the recipient of alimony is cohabitating, then the Court must determine if the nature of the new relationship imposes a burden on the payor to continue making alimony payments to a cohabiting former spouse who may be sharing living expenses with the alleged cohabitant.
The payor of alimony does not need to demonstrate with specific evidence that significant changes in the recipient’s financial circumstances have occurred as a result of the cohabitation, but may show that a change of circumstances has arisen which warrants a modification. Courts must consider circumstances such as the length of time and permanency of the alleged cohabitation; the economic status and each party’s financial involvement with the relationship; the timing of the relationship and whether it began before or after the divorce; and the nature and extent of activities and personal choices as to lifestyle that the parties demonstrate as part of their relationship.
While alimony is not a life long obligation in New Jersey except under very limited circumstances, payors should still expect to pay alimony for a long period of time. Under the New Jersey Alimony Reform Act of 2014, all alimony awards post-dating the statute are now presumptively limited in duration. For such alimony awards, the New Jersey Alimony Reform Act requires the court to consider among other factors the nature and length of the marriage. The statute also includes a non-exhaustive list of circumstances that must be considered in determining whether to revise the length of the alimony award that might either extend or shorten alimony. One such listed condition includes any prior agreements the parties may have made regarding the duration of alimony.
When the Act went into effect there were years of pending cases affected by the change in the law. For those cases, the Court retained the discretion to either extend or reduce an award of alimony based upon the facts and circumstances of each case. In so doing, the Court must still make findings of facts that support a deviation from the presumptive durational limits of the Act. Factors courts have considered include limitations agreed upon by the parties in their settlement agreement, the length of the marriage, the ages of the parties, the parties’ relative earning capabilities, and the amount of the alimony award, among other factors.
The New Jersey Cohabitation Law can clearly have a long-term impact on alimony, but unless the parties are seeking it, the law does not provide for a long-term, impactful change where the payor seeks a modification of their alimony obligation.
Legal Safeguards for Cohabitating Couples
In New Jersey, the legal protections do not extend beyond those that are provided through formal marriage. Aside from the protections afforded under the newly effective child support statute, which was largely enacted in order to address the needs of children of unmarried parents, the law that would otherwise apply to legally married couples is not available, in a generally universal sense, to unmarried cohabitating couples. This is a distinction that is often difficult for the newcomers to cohabitation to understand, particularly when considering the differences in benefits that accrue to married couples . Cohabitation agreements are contracts that can address many of the concerns surrounding the need to provide for the rights and obligations to each other upon separation or the death of a partner. Because the law applicable to married couples does not extend to cohabiting couples, the contract between them is the best way to ensure that they are protected if things go wrong. A cohabitation agreement can address matters such as how their joint assets will be divided upon their break up, what will happen to the children if their relationship ends, and whether either party will be required to provide spousal support to the other in the future, among other issues.
Changes and Case Law
The evolution of post-divorce cohabitation law in New Jersey has been significantly influenced by key court decisions. The seminal case, Nufrio v. Nufrio, set the foundation for the inquiry into whether a former spouse’s relationship warrants a reduction or termination of support. Since then, other cases, like McGuire v. McGuire and Levinson v. Levinson, have refined the inquiry and established a clearer path for evaluation.
In Nufrio v. Nufrio, a 1993 New Jersey Supreme Court decision, the Court stated that whether cohabitation warrants a modification of support turns on all factors relating to the circumstances of the dependent spouse but is not limited to whether the dependent spouse has entered into an economic or social partnership with another. The Court in Nufrio further explained that the essential question is whether the dependent spouse has entered into a relationship that, from the holder of the independent spouse’s perspective, "should affect the support obligation."
In establishing a claim that a court-ordered cohabitation agreement is in effect, the party seeking modification has the burden of making both a prima facie showing of the couple’s living together as a couple; and that the cohabitation has created a change of circumstances warranting a modification of support.
The Court in McGuire v. McGuire, 386 N.J. Super. 251 (N.J. App. Div. 2006), set forth a non-exclusive list of factors to be considered in determining whether the parties are living together as a couple. Those factors are: (1) shared household expenses, (2) joint tax returns, (3) commingled bank accounts, (4) joint loans and mortgages, (5) an agreement or other evidence of a common purpose, (6) a significant degree of economic interdependence, (7) other indicia of primary economic support, (8) reputation as a couple, (9) joint property ownership or transfer of assets between the parties, (10) significant degrees of companionship, (11) sexual relationship, (12) exclusive living arrangements, and (13) a significant duration of the relationship."
Levinson v. Levinson is one of the recent cases extending the cohabitation inquiry. Levinson v. Levinson, 2017 N.J. Super. Unpub. LEXIS 2444 (App. Div. Sept. 13, 2017) involved plaintiff’s post-judgment motion seeking an increase of defendant’s alimony payments which had originally been awarded in his 1991 divorce settlement. Defendant cross-moved for termination of his support obligation alleging plaintiff had entered into a marital type relationship with a male friend she met online. The Court held that plaintiff is not required to "forever" live alone because of defendant’s obligation to pay alimony. Further, the paid services offered by plaintiff’s male friend did not establish a romantic partnership because there was no evidence that it was anything more than a business arrangement. The Court also rejected defendant’s argument that plaintiff’s use of a dating website in 2012 demonstrated that she contemplated divorce.
The line of cohabitation cases in New Jersey continue to evolve and are influenced by social changes and the changing face of family. Co-habitation cases will continue to be brought as relationships between former spouses evolve in order to modify, suspend or terminate support obligations.
Considerations for Cohabitating Couples
For those who have decided to cohabitate in New Jersey, there are some practical considerations that need to be reviewed. Much of the above restate legal doctrine concerning cohabitation while other bases concern new law.
Cohabitation Agreements:
If you are contemplating cohabitating with a partner in a romantic relationship, it is always advisable to enter into an agreement setting forth the rights of the parties. The Parties can enter an enforceable written agreement detailing the terms of their living arrangement. If this is intended to be a long term relationship, the agreement will be similar to a pre-nuptial (pre-marital) agreement. If the parties are only considering a short term living arrangement, the document will be very much like a roommate or rental agreement. The contractual agreement can address any issues that may arise in the future, including but not limited to financial agreements, sharing of property, and rights to separate property. There is no reason why cohabitating partners should not enter into an agreement. Remember, you cannot divide joint property as though it were a divorce. The property must first be characterized as either marital or separate before the statute concerning equitable distribution can be applied.
Financial Issues:
Cohabitating couples should also be mindful of their economic requirements and should periodically assess their contribution to those requirements. For example, if you rent your apartment in New Jersey and you are both on the lease, what happens to the lease when the relationship changes. Without a cohabitation agreement, you are out of luck. However, if the relationship ends and the lease is set to expire, the landlord may seek to charge double rent from one or the other of the tenants. It is very difficult to get out of a lease unless the landlord agrees to turn over the obligations to the remaining tenant .
Health Benefits:
Generally, if you are a cohabitating partner, you cannot be covered under your partner’s health benefit plan. However, if you are legally married, you are entitled to be covered. Therefore, if your own occupation requires health insurance and your partner does not have coverage, you should file a domestic partnership plan. The plan merely requires a notarized statement setting forth that 1. You have lived together continuously in New Jersey for at least 6 months; 2. You are at least 62 years of age; 3. You are financially interdependent.
In the area of health care coverage, the same type of agreement can be prepared to detail the medical rights of the parties. As noted above, a cohabitating couple cannot make medical decisions for a patient who is not their spouse. However, if the patient is aware and has signed the requisite documents to allow the cohabitating partner to address health care concerns, the medical community must follow the directive.
Inheritance:
As noted numerous times above, because you are not married, you have no right to inherit from your partner or your partner’s family. A Will must specifically name you as an heir and must specifically list the property you intend to inherit.
Income Tax:
There is a narrow exception to the federal tax coverage if you live with your partner in a 4-plex or larger apartment house and have separate apartments with your household furnishings. You can file as a single person, but you cannot file as "head of household" which has more favorable tax consequences.
As mentioned above, living together without a written agreement can be dangerous. It is the author’s position that contracts pertaining to cohabitation are equally as important as marital contracts and should be treated that way.