Divorce FAQ's
1. Is there a “common law” marriage in New Jersey?
There was a time when living together in a long term relationship and acting as husband and wife was considered under the law to be equal to marriage. That was called common law marriage and it was abolished by statute in New Jersey in 1939. Since common law marriage ended, there are no longer any laws with guidelines for determining whether support should be awarded from one unmarried partner to another when their long term relationship ends.
A common law marriage is one in which the parties have lived together for a long period of time, and they hold themselves out to the public as husband and wife. New Jersey does not recognize any so called “common law” marriage. This is a type of relationship wherein the couple lives together buy have no participated in a full ceremony. Unlike some other states, in New Jersey a couple cannot acquire marital rights and responsibility by simply living together for a particular period of time.
Although the social mores have changed greatly since common law marriage was abolished, neither the New Jersey Legislature nor the courts have re instituted common law marriage. Unmarried partners are treated differently from a spouse in a number of significant ways. They do not have the same status as a spouse in regard to the worker’s compensation and insurance benefits of their partners, they cannot inherit by intestate succession, and they are not allowed to recover for wrongful death under the Wrongful Death Act.
2. Who will make your medical decisions if one partner should become ill and incapacitated?
If you are injured or incapacitated and unable to speak for yourself, you will probably want your partner to step in and make medical decisions on your behalf. Unfortunately, partners of unmarried couples, unlike their married counterparts, aren’t legally permitted to make such decisions for each other without signed authorization. Unmarried couples can make the medical decisions for their partner if they both obtain living wills. Each living will can designate each partner as the decision maker to make the medical decisions.
3. Who will make your financial transactions if one partner should become ill and incapacitated?
In addition to medical decisions, you should think about who will handle your financial matters if you should become incapacitated. A durable power of attorney for finances allows you to name someone you trust to pay your bills and otherwise take care of your finances if you can’t.
If you become unable to manage your finances and if you haven’t prepared a durable power of attorney for finances, then your partner will have to ask a court for authority over your financial affairs. This procedure is called a guardianship proceeding, and it can be time consuming and expensive. And what’s worse, a judge may appoint a relative rather than your partner (or other person you choose) as a guardian. Preparing a durable power of attorney for finances is a simple way to avoid these troubles.
If you feel uncertain about giving away so much authority, keep in mind that all of these documents can be revoked. Nothing is irreversible unless and until you can no longer speak for yourself. But leaving these issues unaddressed and hoping for the best is courting disaster of the worst kind.
One last suggestion: Keep the originals in a safe place where your partner can obtain them quickly. And keep copies with your other important papers.
4. My partner recently died and/or left me. What are my legal rights?
It all depends. These are the types legal scenarios that can make it easier for partners to make legal claims after a breakup or the death of a partner;
- You and your partner had a written or oral contract about property or assets (and your relationship has now ended).
- Your partner named you in his will (and has now died).
- You owned property (a car, a house, etc.) in both your names.
- You were registered as domestic partners in New Jersey or municipality, or had a civil union.
If you satisfy none of the above categories, then you may you may be out of luck. Moreover, the cold hard reality of being in an unmarried relationship often leads to some very unfair life realities. In my many years of practice, I have heard of many terribly sad stories from unmarried partners who found themselves in awful situations when their unmarried relationship ended, or if one partner died. Most of these unmarried partners did not take adequate steps to protect their legal rights when the relationship was going well. The plain truth is that it is critical for unmarried couples to have wills and cohabitation agreements. The bottom line is that New Jersey’s legal system has not kept up with the times. The laws of New Jersey simply do not give unmarried relationships enough “respect.” More often than not, at the end of the unmarried relationship there is a very sad and dissatisfied partner, who does not receive his or her fair share of the assets that were accumulated during the relationship.
In many unmarried relationships, one partner holds title to the home. The other partner often provides substantial financial contributions to the home, but he or she is not named on the title. Moreover, in many cases this partner also provides homemaking services to the unmarried relationship. If the partner who holds title to the home dies, and if the other partner does not receive the house or condo as part of a distribution under the will, then he or she will have to be evicted from the home. New Jersey’s laws of intestate succession will ultimately direct that the home is devised to the blood relatives of the deceased partner. This type of situation occurs all of the time. Once the deceased partner’s family members inherit the home, then they will show no mercy to the surviving partner. In my experience, the partner’s heirs will try to evict the surviving partner on expedite basis.
The bottom line is that with proper planning, and with the assistance of an experienced lawyer this type of disaster can be avoided. There is always an adequate “middle ground” that can be reached. The inheritance rights of the unmarried partner’s family members can be protected. Moreover, the opportunity for the surviving partner to continue to be able to live in her own home can be also safeguarded in a cohabitation agreement. There are solutions to every type of legal scenario. Quite often if a person ignores their legal situation, then it will become “double the mess” if he or she dies without a will or without any estate planning.
5. If I live together with my partner am I responsible for their debts?
Unlike marriage, living together does not make you responsible for your partner’s debts. Should your partner declare bankruptcy or face other debt problems, you won’t lose your property as long as you have kept it separate. Your wages cannot be attached and your property cannot be taken to pay for your partner’s overdue bills or debts, and your credit rating will not be negatively affected by your partner’s financial problems.
But this financial independence may suddenly disappear if;
- You sign a joint purchase agreement.
- You co-sign a loan with your painter obligating yourself to pay the debt if the person taking about the loan fails to do so.
- Your partner’s debt is charged to a shared or joint account.
- You register a domestic partnership.
6. What are the legal implications if I have a joint checking account with my partner?
Having a joint bank account is sensible if you limit its purpose and also keep adequate banking records. Many unmarried couples have peacefully maintained joint bank accounts for many years. However, having a joint bank account has many risks. Each partner has a right to spend all of the money. Moreover, both partners are responsible for all activity involving the account. You are equally liable for bounced checks, overdrafts, and all of the rest. This can cause big problems if on of you is a habitual over spender.
There are many risks to having a joint bank account. I have handled countless of divorces and dissolutions of unmarried relationships wherein one partner “cleans out” a joint bank account, and then skips town. I have one case wherein the devious husband cleaned out the joint savings account with $100,000 deposited in it. Thereafter, the unscrupulous husband then transferred the money to another savings account located in his home country of Columbia. Therefore, if you keep a joint bank account don’t keep all of your money in it. Unfortunately, I was never able to recoup my client’s share of the monies that her ex-husband stole. Sad stories such as this one is very common in the area of family law. Therefore, if you must have a joint bank account with a partner, then only deposit some of your savings in the account. One mistake could wipe out your life’s savings. Be smart, and don’t let yourself become a victim!
Additionally, you can prevent your partner from bouncing checks and the like by requiring both signatures on the checks and withdrawals. But this is usually cumbersome and inconvenient.
7. What are the legal implications for an unmarried couple if they have a joint credit card?
As with bank accounts, you may also want to keep your credit card accounts separate. Each domestic partner can deal with his or her creditors on their own terms. In that way you don’t have to worry about the other persons purchase and potential damage to your credit rating. Nevertheless, many unmarried couples open joint credit card accounts in which both partners are authorized to charge up to a credit limit.
In this day and age, it is very easy to put two names on a credit card. You simply fill out a joint card application. Many credit card companies have changed the application from spouse to co-application or to co-applicant/spouse. As long as you have sufficient income or savings to be considered a good credit risk, then you will probably get the credit card. Credit card companies are generally willing to open joint credit accounts, and why should they not be? A joint account means more people are responsible for a debt.
You can open a joint account for many purposes, such as paying household expenses or to fund a distinct project – for example, remodeling a kitchen, saving for a vacation, or making a joint investment. Moreover, you may use a credit card solely for household purchases, and use your individual card for all other expenditures. You can get a joint charge account where you pay the entire monthly balance at once, like American Express. Alternatively, you can obtain a charge card wherein you are only obligated to pay a monthly minimum, such as a VISA or a department store account.
Be warned that having joint credit cards can also be a disaster. It is not uncommon for one partner to charge up a storm on several credit cards, and they may “stick” the other partner with the bills. In many cases, after the unmarried relationship ends one partner will file for bankruptcy. Therefore, if there any joint credit card accounts, then the creditor will pursue collection against the other partner who did not file for bankruptcy. This type of scenario occurs all too frequently. In summary, I would only open up one joint credit card, and keep the balance to a very reasonable limit. The harsh reality is that in many instances unmarried relationships don’t last forever. If you get burned financially in an unmarried relationship, then you want to limit the damage. Therefore, in any unmarried relationship you want to limit your financial exposure to your partner’s credit card charges.
It is important to emphasize that if you break up, then you should immediately close all joint bank accounts and credit cards. All too often one partner feels depressed about a breakup, and then he or she tries to feel better by going on an expensive shopping spree. Don’t just divide up the credit cards, and each partner keeping a few of them. You are still both liable for all joint credit card accounts, and you could get stuck paying for your partner’s credit card charges. Moreover, if a joint credit card account becomes delinquent, then your credit report will be “nuked,” even if you did not incur the charges.
8. What type of Social Security benefits do unmarried couples receive?
Unmarried couples that live together are often at a major disadvantage when it comes to receiving Social Security benefits. This disadvantage can even be more severe for the partner if her or she stays at home, and cares for the children and runs the household.
Typically, you can qualify for Social Security benefits based on your own earnings record. If you don’t work at a job that requires the payment of Social Security tax, then you don’t earn credit toward Social Security benefits. But married couple’s get a significant benefit, they are spouses are eligible for certain Social Security benefits based on the others spouses earnings record. These are called dependent’s benefits, which you get if your spouse qualifies for retainment or disability benefits, and survivor’s benefits which you get if your deceased spouse or ex-spouse qualified for the retainment or disability benefits. So for example, if a wife stays at home and takes care of the kids for a number of years, she may still be able to collect Social Security benefits based on her husband’s earnings record. Adults who live together, but who are not married are not eligible for their partner’s dependent’s or survivor’s benefits although their children are dependents of both. This presents an obvious disadvantage when one partner in a living together arrangement works outside the home and other works in the home caring for kids or taking care of the household.
9. How is the retirement plans of an unmarried couple treated?
Many people are very surprised to learn that the bulk of their wealth is in their retirement plan(s). These valuable assets provide security to the retiring worker. Moreover, these funds can also provide support for a surviving spouse if the worker dies prematurely. Unmarried couples can use retirement plans in much the same way. These retirement funds can be used by unmarried couples to provide support for a surviving partner. However, unmarried couples must jump through few more hoops to accomplish this objective.
In an unmarried relationship, each partner must name the other partner as a beneficiary on an IRA 401(K), or any other type of retirement plan. The unmarried couple must name the other partner as a beneficiary by filing out a beneficiary designation. Generally, your financial institution will require you to complete a beneficiary designation form when you first open up an IRA, SEP or Keogh. But in the case of an employer’s plan, you might have to request a form from your plan administrator.
Many employer retirement plans name a surviving spouse as a default beneficiary in the event that the employer fails to designate a beneficiary in wiring. However, unmarried partners will not be named as default beneficiaries. Therefore, it is very important for unmarried couples to complete the appropriate forms and name each other as a beneficiary.
If you name a beneficiary on your retirement plan then this accomplishes several goals. First, it ensures that your retirement assets are distributed to the people whom you intend to give it to. Second, when you designate a beneficiary, these funds will be distributed to the person “outside of the estate.” Basically, the monies from the retirement plan will not have to go through the probate procedure in New Jersey. Finally, when you name a beneficiary on your retirement plan, the person who is designated as a beneficiary will receive their money in a relatively short period of time. These retirement funds are not part of the decedent’s estate. Therefore, these retirement funds can’t be tied up for years in a protracted estate litigation case.
10. I have had a live-in partner for more than ten years. If my partner should get sick and amass major medical bills, am I legally responsible for paying for her medical bills?
Generally, one member of a married couple is liable to pay for all, or at least a substantial portion of, health and nursing home care for the other, over and above what is reimbursed by public or private insurance. The legal situation is far better for unmarried couples. If one partner has significant medical bills or moves to a nursing home, there other partner’s property is not at risk of being grabbed to pay for the bills. If the institutionalized person exhausts his or her property, including his or her half of jointly owned property, then Medicare pays the rest, and the other member of the couple doesn’t have to exhaust any of his or her savings to sell property to raise money.
11. What are an unmarried couple’s rights and obligations when they rent a home together?
Before a couple moves in together it is essential that they are as clear as possible as to whether both are renting the place, or whether only one partner is the tenant, and the other partner is simply living there. If both partners enter into a lease or rental agreement with the landlord, then both parties are fully liable to pay all the rent and any damages to the rental unit. It does not matter how you split the rent. You are both independently liable to the landlord for all rent, and for complying with all of the terms of the lease or rental agreement.
The landlord often reminds the co-tenants of this obligation by inserting into the lease terms that specify that the tenants are “jointly and severally” liable for paying rent and adhering to the terms of the lease agreement. If one tenant (partner) can’t pay his or her share of the rent in a particular month, or simply movies out, then the other partner must still pay the rent in ful.
When an unmarried couple shares a rental unit they usually have certain expectations of each other as roommates. I also recommend that both partners write them down.
12. What legal steps should an unmarried couple take if they decide to purchase a home together?
There may come a time when you and your partner decide to purchase a house or condo together. When you purchase a house or a condo with your partner, you must decide how you will own the property, or, as they say in the real estate business, how you will “take title.” You have three basic choices as to how to take title;
- One person holds title as the sole owner.
- Both of you hold title as “joint tenants.”
- Both of you hold title as “tenants in common.”
13. What are the legal implications if an unmarried couple takes title only in one partner’s name?
If a recorded deed contains only one name, then that person is the legal owner. He or she has full legal power to sell or will away the house. In many instances, a couple that jointly owns a house is tempted to put only one name on the deed to save on taxes, avoid creditors, or to hide it from an ex-spouse. However, in most cases the risk is inherent in putting a jointly owned house in one person’s name far outweighs the benefits. If your partner is the only one named on the deed, and therefore is presumed to be the sole owner, you may be out of luck if your partner sells the house and pockets the money. Another tragic scenario could happen if one partner dies and leaves the house to another relative.
The other partner can sue his or her ex-partner to recover the amount of their financial interest in the property. However, these lawsuits are very hard to win, and the legal fees can be tremendous.
14. What are the legal implications if an unmarried couple takes title as joint tenants?
If an unmarried couple takes title as joint tenants, then they will share equal ownership of the home, and each partner has the right to use the entire home. If one joint tenant dies, then the other automatically becomes the owner of the deceased person’s share, even if there is a will to the contrary. This is called the right of a survivorship.
An advantage of joint tenancy is that at the death of the first joint tenant the home passes to the surviving joint tenant without the expense of and the trouble of going through probate.
Joint tenancy is only appropriate when each joint tenant owns the same percentage of the property. Thus, you and your partner can each own 50% of the house. But if you won 60% of the house, and your partner owns 40%, then joint tenancy won’t work. In this case, then you will be classified as tenants in common.
Taking title to a house in a joint tenancy is an effective way to pass it onto your partner in an unmarried relationship. Moreover, taking title as joint tenants also permit the surviving partner to avoid going through probate.
15. What are the legal implications if an unmarried couple takes title as tenants in common?
Perhaps the most common way for unmarried couples to take title to a home is as “tenants in common.” Unlike a joint tenancy, a tenant in common has no automatic right to inherit the property when the other partner dies. When one tenant in common dies, his or her share of the jointly owned property is left to whomever he or she specifies in the will. If there is no will then his or her share will pass to their relatives according to New Jersey laws intestate succession. Moreover, his or her intestate heirs will inherit the home, and that does not include the unmarried partner.
If an unmarried couple chooses to own the home as tenants in common but agree that if one partner dies, then the other will get the entire home, then you must be very careful. Your partner could change his or her will at any time to leave his or her share of the home to someone else other than you. Moreover, if your partner does this, then he or she does not have to notify you of this change.
16. Are there any other legal steps should an unmarried couple take if they decide to purchase a home together?
A house is a major economic asset, and it is usually a couple’s most valuable economic asset. Therefore, it is very important for an unmarried couple to clearly define their expectations and obligations in writing. This is in addition to taking title via a deed. There are several different types of contracts for unmarried couples who decide to own a home together. These contracts cover basic issues such as how to share costs and ownership, what happens to the hose if you break up or one of you dies, and how you intend to deal with disputes. Some samples of these agreements are posted on my website DivorceCenterofNJ.com.
Any unmarried couple that plans to jointly own a house or condo must prepare a written contract. When it comes to investing in a home, it is just plan stupid to try to wing it. If the unmarried couple should eventually break up, then any so oral agreement is quickly forgotten.
After your agreement is in writing, the safest legal approach is to record it at your County Registry along with the deed. To do this, you will need to get both signatures of the partners notarized. Notarization means that a person authorized as a notary public certifies in writing that you are the person you claim to be. If you want to have your contract notarized, then you and your partner must appear in front of the notary and show proof of you identify.
17. How should an unmarried couple purchase a new vehicle?
It is not uncommon for an unmarried couple to purchase a vehicle together. It is very important to understand all of your options and to choose how title to the vehicle is held if you choose to own a vehicle together.
Sole ownership. If you intend that the vehicle will belong only to one partner, but the other partner will pay for all or part of the down payment in the form of a loan, then the borrower should sign a contract to repay. This contract is called a promissory note.
If you decide that only one of you will own the vehicle, you can include the other partner as an additional driver on the vehicle insurance. One advantage to sole vehicle ownership: If the vehicle is involved in an accident, then only the partner who owns the vehicle can be sued. However if the other partner was driving, then he or she could be sued for negligent actions.
Joint ownership. If you intend to own the vehicle jointly, then you will need a written agreement that specifically describes any ownership details. This is very important if only one of you signed for the loan but both of you will be contributing toward this repayment. When you register the NJ Motor Vehicle Services, put it in both names. You will have three options with vehicle registration;
Option One
Danny Defendant or Patty Plaintiff. This creates a joint tenancy. If one person dies, the other automatically inherit the car without going through the probate process.
Option Two
Danny Defendant and Patty Plaintiff. This establishes a tenancy in common. Both signatures are required to transfer title to the vehicle. At death, however, each person can leave his or share to anyone he or she wished. It no estate plan is made then the nearest blood relative inherits the deceased person’s share by the laws of intestate succession. If you want your party to inherit your interest in the car, include in your will.
Option Three
Patty Plaintiff and Danny Defendant as joint tenants with right of survivorship. Not only does this let the survivor automatically inherit the car without going through probate if one of you dies, but it also requires both signatures to transfer title while you are both are alive.
18. I have been living with my girlfriend for almost six years. I have paid for her to attend nursing school. Is there any type of agreement that can cover this type of situation?
It is very common for one partner to help out the other with educational expenses or support while he or she is in school. It is important to have any type of written agreement in this type of scenario.
Agreements providing that one member of an unmarried couple will help support the other while he or she goes to school can take many different forms. The main point of this agreement will make clear that the partner going to school will owe the other partner (who pays all of some of the school bills and supports the student while in school) a certain amount of money. That way, if the couple breaks up shortly after the student finishes school, then the non-student partner won’t have paid the school bills and provided support to the student for nothing.
One way to plan for a fair monetary result is to provide that the person going to school repays the other party for any money expended for tuition and living expenses. This can take the form of a simple promissory note for all money paid out.
19. If an unmarried couple does not have a will, then how will a deceased partner’s estate be distributed?
Many unmarried couples avoid the subject of death. They don’t plan for what will happen to their property if they should die. Unfortunately, this can be a disaster for an unmarried couple. If you die without a will then your assets will usually go to your relatives. If a person dies without a will then their estate will be distributed according to New Jersey’s laws of interstate succession. Therefore, the partner’s estate will be distributed to surviving children. If there are no surviving children, then the estate will be distributed to his or her parents. Finally, if his or her parents are not alive, then it will be distributed to any brothers and sisters. Consequently, the surviving partner will not receive any share of the decedent’s estate. It must be emphasized that the laws of New Jersey are only designed to pass property to spouses and to blood relatives.