What is Common Law Marriage?
Common law marriage is an informal type of union between two people that can potentially lead to a legal marriage. This means that a common law relationship has many of the attributes of a traditional marriage, such as a long-term cohabitation and the mutual intention to be viewed as a married couple by friends, family, and the general populace. Although common law marriages may share many attributes with traditional marriages, the legal concepts underlying them vary. For example, common law marriages are not recognized in all states, while traditional marriages are universally valid. In order for a common law marriage to be established, several criteria must be met. First, there needs to be a specific period of cohabitation between the partners. In most cases, potential common law spouses live together for several years before their union could be considered legal. If only one partner decides to move in with the other, their marriage would not qualify as a traditional or common law marriage. The second major requirement for a common law marriage is that the couple must reside together in a state that recognizes the validity of common law unions. Different states have different formal requirements for a valid marriage, but the majority of states do not recognize common law marriages at all. That is, a couple that resides in a state that does not recognize common law marriages will not have their legal union validated, even if they have been cohabitating for several years as husband and wife . The third major requirement of a common law marriage is intent. Namely, the couple must intend to be married to each other in the long term. Their actions must demonstrate their intent to be treated as a married couple and the couple must hold themselves out as husband and wife to friends, family, and strangers alike. A common law marriage must meet the above criteria in order to be considered legally binding. However, each state establishes its own means of recognizing a common law marriage. For example, a couple may be required to sign legal documents affirming their status as a married couple, or they may have to wait a certain period of time before their common law marriage is considered valid. In the United States, 10 states plus the District of Columbia recognize common law marriage under certain circumstances. These states are: Texas allows common law marriages to be recognized upon the latter of: Therefore, the earliest date that the common law marriage can enter into force is the 23rd month after the date of filing the Declaration of Informal Marriage. As noted, the above states only recognize common law marriages under certain conditions. For example, New Jersey does not recognize common law marriages at all despite the fact that some of its neighbors like Pennsylvania and Delaware do recognize them.
New Jersey’s Position on Common Law Marriage
Historically speaking, common law marriages were once legal in New Jersey, however, that is no longer the case.
On December 1, 1939, the New Jersey Legislature revised its domestic relations law (N.J.S.A. 37:1-1 to -46). The revision was made with a clear intention to eliminate common law marriage. The new statute provided that: All marriages subsequently contracted, and all civil unions, subsequently entered into, in this state shall be in accordance with the provisions of this act, and no other form of marriage or civil union shall be recognized as valid in this state.
The intent of the Legislature is apparent and clear; no other form of marriage or civil union shall be recognized as valid in New Jersey. Therefore, after December 1, 1939, an enforceable common law marriage cannot be contracted in New Jersey. The case of In re Estate of M.T., N.J. Supr., 129 N.J. 421 (1992) held that an alleged common law marriage can be declared invalid as a matter of law if it does not meet the statutory requirements for a ceremonial marriage. Additionally, the New Jersey Supreme Court in Gill v. Office of Personnel Management, 699 F.3d 182 (3rd Cir., Oct 01, 2012) ruled that legally married same-sex couples who travel to New Jersey for work are entitled to Federal employee benefits. Employees can receive Federal benefits because New Jersey law recognizes a legally conducted marriage performed anywhere in the world. The U.S. Supreme Court recently declined to review the court’s decision.
Legal Consequences for Unmarried Couples in NJ
When it comes to legal rights and obligations of unmarried couples in NJ, it is important to consider the following:
Support Payments – New Jersey law does not impose any financial support responsibility on people who are not married. Under certain circumstances a support type agreement could be enforced if entered into when the parties were unmarried. Even in the case where a pact was entered into, the laws of equitable distribution would not apply to the non-marital relationship.
Distribution of Jointly Owned Property – New Jersey law as it relates to the equitable distribution is only applicable to marital couples. Parties who are not married do not have the same right to request an equitable distribution of assets. It is certainly advisable for parties in a non-marital couple to consider a sort of prenuptial-type agreement prior to entering a joint venture and to designate how assets will be distributed in the event that the relationship dissolves.
Custody of Minor Children – New Jersey is primarily concerned with the best interests of the child in considering issues of custody. However, when parties are not married, the "best interest" standard may change somewhat to consider the presumptive parental rights of the parties.
Inheritance Rights – Individuals who were not married at the time of a death do not have the same inheritance rights of individuals who were married. Therefore, it is critical for individuals in non-marital relationships to consider some sort of property transfer document such as a will or trust.
Alternatives to Common Law Marriage in NJ
Recognizing that common law marriages may not follow the traditional forms of a religious or civil ceremony, New Jersey has offered alternative legal arrangements for couples who wish to avoid the traditional ritual. Domestic partnerships and civil unions provide rights and responsibilities equivalent to those of married couples. The Government Accountability Office states that over 1,000 federal benefits are available for married couples, whereas domestic partners and civil union partners are only entitled to approximately 460 of these benefits.
An unregistered domestic partnership is permitted in NJ if one partner has resided in NJ for at least 6 months, while the other must have lived in NJ for at least 30 days. These requirements, however, do not extend to domestic partnerships formed in other states. Courts have ruled that some Massachusetts domestic partners are entitled to benefits under NJ law. Courts have ruled that some Massachusetts domestic partners are entitled to benefits under NJ law.
In 2007, New Jersey permitted civil unions. Unlike domestic partnerships, civil unions are available to all couples who wish to obtain legal rights and benefits equivalent to those of married couples. A civil union permits same-sex couples and different-sex couples to form legally recognized relationships. Domestic partnerships remain an option for same-sex couples and different-sex couples who are unable to meet the requirements of a civil union. There are a number of federal benefits available to husbands and wives that are not provided to those holding domestic partnerships or civil unions.
Getting a Legal Union in the State of New Jersey
As couples begin the process of understanding common law marriage and the implications of being a common law state, there may be interest in determining the steps to take if such couples want their relationship fully recognized in the state of New Jersey. The most straightforward way of doing this is to secure a marriage license and formalize the marriage (or domestic partnership) through solemnization. Obtaining a marriage license in New Jersey is fairly easy, provided the applicants meet certain minimum requirements. By law, both applicants must be 18 years of age or older. Persons must obtain a marriage license at least 72 hours before a scheduled solemnization, during which time couple must be physically present at the appropriate municipal office to provide necessary forensic evidence. In fact, New Jersey is among a few states that specifically require that marriage applicants appear in person to apply for a marriage license . Those persons who have previously been married must have all outstanding legal issues resolved with regard to the old marriage, including having the old marriage invalidated or dissolved. Once obtained, a marriage license has an expiration of 30 days. Judges are permitted to solemnize a marriage in New Jersey in addition to authorized ministers of religion and civil marriage officiants. Couples seeking to obtain a marriage license may also be interested in forming a civil union or domestic partnership to formalize their relationship. Generally speaking, New Jersey does not recognize same-sex relationships beyond those formalized as marriage, civil union, and domestic partnership. Couples that wish to have a domestic partnership recognized may do so through registration coupled with solemnization. Domestic partnership registration is not available to parties who were either married or part of a civil union at the time the New Jersey Domestic Partnership Act was enacted.
Common Misconceptions About New Jersey Law
Myth 1 – New Jersey recognizes common law marriage as long as you have lived together for at least 10 years to 20 years.
Truth: New Jersey does NOT recognize common law marriage, but it used to. The New Jersey Supreme Court ruled that any couplings formed before October 25, 1939, the date of the common law abolishment in the state. Couples that married before that date are still recognized today; however, if you were married after the 1939 date, you must go through the standard legal process of marriage, such as getting a license and tieing the knot.
Myth 2 – Couples who live together for a certain amount of time are deemed common law married.
Truth: As previously mentioned, the Garden State is no longer a common law state. Some people believe that living together creates a common law marriage, but it solely depends on the intentions and actions of both individuals. Therefore, if you are looking to protect assets or request spousal support or alimony, you are unable to file for these things because you and your spouse were never considered married.
Myth 3 – You can legally end a common law marriage without a divorce or annulment.
Truth: Hen a couple is legally married, breaking up is relatively simple. You either file for a divorce or an annulment (in rare cases), and you divide everything as per court-ordered terms. When it comes to common law marriage, however, things get muddled. Without being technically married, you and your spouse have no recourse. You simply go your separate ways. Issues related to property division, custody or any other thing you would want to ask the judge for in a divorce, you would likely not be able to ask the judge for if you were only common law married.
Legal Consultation in New Jersey
As a couple in your 50’s, you may receive advice from family and friends, full of theoretical and less than solid legal advice. You can do better. You should consult with an experienced New Jersey family law attorney to determine your legal status in the State of New Jersey. There are many important legal ramifications between traditional marriage and cohabitation, between long-term cohabitation and the cohabitant who seeks or intends to marry. Issues such as property rights, spousal support, inheritance, health care proxy rights and insurance issues could have a profound impact on your financial future .
While your parent(s) may have been married in a church or at a courthouse, this is no longer the case. In light of our culture’s increased sexual freedom, people cohabit for years before they commit to marriage, if they commit at all. While states vary widely on how they treat domestic partners and cohabitating couples, New Jersey still has yet to include domestic partner laws, as it exists in Massachusetts, Vermont and Connecticut. Likewise, on the state level, we have civil unions but no "live-in" status as in Illinois.
