Questions about Common Law Marriage in NJ

Divorce Law
common law marriage

Division of Marital Property in New JerseySo what’s the deal with Common Law Marriages in NJ? Sometimes my divorce consults end up going like this:

“How long have you been married?” I will ask.

“Fifteen years,” They will say. Or ten.

“Was it a civil or religious ceremony?” I will ask.

This I ask because when I file a complaint for divorce, I have to specify what sort of ceremony was performed. New Jersey law does not treat religious marriages (meaning there was a marriage licensed, and the couple is legally married) any differently than civil marriages performed by a Judge or other non-religious figure. Both are civil contracts.

“Oh we never had a legal or religious service,” they’ll shrug. “We’re common law married.” Or they might say, “Oh, we had a religious ceremony, but we never registered it with the state or got a marriage license.”  And these kinds of answers fundamentally change the entire consult, because New Jersey does not have ‘common law’ marriage.

People assume when they have been with their partner for many years, lived in a manner just like that of spouses, have held one another out as spouses, and in all other ways treated one another as spouses, there should be some legal recognition of this status even if they never formalized the union. This concept is called “common law” marriage. Most states no longer have common law marriage. There has been no common law marriage in New Jersey since 1939.

Now, this is not to say there are no “common law” marriages in New Jersey’s borders. Because of the Full Faith and Credit Clause of the US Constitution, New Jersey does recognize a common-law marriage that is recognized by the state where the couple was living, if they met the requirements that state has for a legally recognized common law marriage (which vary by state.) As only nine states (plus DC) still have common law marriage this situation uncommon. If you believe you have a common law marriage in the state where you formed the relationship and are considering your options if you leave your partner (or if your partner leaves), I strongly encourage you to speak with legal counsel ASAP!

New Jersey does recognize suits for something called “palimony,” which is a form of former partner support for unmarried couples that will be enforced by the Court under specific circumstances. And New Jersey permits issues of custody, parenting time, and child support to proceed under case and statutory law that is identical to how those issues are handled in a divorce situation.

But common law marriage? It doesn’t exist in New Jersey. If you want the protections associated with marriage when the relationship ends, such as alimony, pension division, et al, the only way to ensure all that is to get married.

If this pertains to you (or someone you love) call 856-227-7888 to schedule a free consultation to discuss your legal options.


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