Cohabitation of Unmarried Adults
July 12, 2024
Many couples decide to enter into a cohabitation agreement or a formal agreement to memorialize their relationship rather than formally marry. Others decide not to enter into an agreement and opt for the “let’s take a chance and see what happens” route. Either way, these decisions have implications and consequences. Unless you legally marry, you are unmarried in New Jersey, despite the fact that you may live together, share assets, have children, commingle your finances and hold yourself out as a married couple.
There are positives to this type of relationship, one of which, is the simplicity of dissolving this type of relationship. If there are no children, and no agreements have been entered into, the parties can simply walk away, without going through the formal divorce process. However, there are drawbacks. Couples can acquire rights and protections similar to those of married couples. One such right may be palimony where one spouse may be required to support the other after the break up. Cohabitation is an indispensable element to sustain a palimony cause of action. Cohabitation requires setting up a household together and the cohabitation announces to the innocent partner and maybe children, that the parties have entered into a ‘marital-type’ relationship. Also, important is the length of time the parties have been in this relationship. Without a written contract, when both parties walk away, there is no obligation to support each other. If either party does not want to risk the potential for palimony, then they must not enter into any contract that promises support. The parties should not use the same last name or portray themselves in a public like marriage.
Another risk arises when the parties acquire property together. For example, they may acquire a home together, or open joint bank accounts, or commingle assets and do so without careful record keeping. The cohabitation home can be subject to a partition action, where one party may own the home, but the other has lived in the home for years, supporting the home both financially and with effort or “sweat equity.” When the couple breaks up, the non-owner may seek to establish rights in the property and bring an action know as partition. A claim for partition by an unmarried adult against the other requires two unmarried but cohabitating people who engage in a joint venture to buy property where they both reside. If the relationship dissolves they can seek partition of that property. A formal agreement is not necessary. To establish a joint venture, the party will need to show some evidence of contributing money, effort, property, skill or some other asset; a joint property interest; some mutual management or control an expectation of profit or the right to participate in profits.
Carl J. Soranno
Member
Family Law Services, Litigation, Patent, Intellectual Property & IT, Bankruptcy
973.403.3127 · 973.618.5527 Fax
csoranno@bracheichler.com
