Unmarried Couples: You Need a Cohabitation Agreement, STAT!

More and more couples and families are building lives together without marrying, but New Jersey does not give unmarried partners the automatic legal protections marriage provides. If the relationship ends—or one partner dies—there is no divorce process to divide property or award support. A cohabitation agreement fills that gap by setting out how partners will handle money, property, and responsibilities during the relationship and if it ends. Sadly, this often leads to one partner being left out in the cold.

A strong New Jersey cohabitation agreement should address both legal formalities and practical terms.

Legal Formalities New Jersey Requires

Put it in writing and sign it

New Jersey’s Statute of Frauds provides that a promise by one partner in a non-marital relationship to provide support or other consideration is unenforceable unless it is in writing and signed by the person making the promise. (N.J. Stat. Ann. § 25:1-5 (West).) The New Jersey Supreme Court has described the 2010 amendment as requiring such agreements to be “in writing and signed” to be enforceable. (Maeker v. Ross, 219 N.J. 565, 99 A.3d 795 (2014).)

The practical point is simple: a handshake, verbal promise, or course of conduct is not enough. Put the agreement in writing. 

The attorney-review issue

The 2010 amendment also required these agreements to be made “with the independent advice of counsel for both parties.” (N.J. Stat. Ann. § 25:1-5 (West).) For years, that meant each partner needed independent attorney review for the agreement to be enforceable.

That is no longer the law. In 2022, the New Jersey Supreme Court held the attorney-review requirement unconstitutional because it compelled people to hire lawyers to enter an agreement no more complex than many other contracts. (Moynihan v. Lynch, 250 N.J. 60, 269 A.3d 435 (2022).) The Court also noted the requirement unfairly burdened people who could not afford counsel. An appellate court later confirmed that Moynihan applies retroactively to written agreements signed before that decision, if the agreements are otherwise enforceable. (Primmer v. Harrison, 472 N.J. Super. 173, 275 A.3d 918 (App. Div. 2022).)

What this means: Separate attorneys are no longer required for validity, but independent legal advice remains strongly recommended. It helps show that the agreement was fair, understood, and signed voluntarily.  This does not mean it is not best practice still to have two attorneys if possible, because that means that each person is being advised to their rights by their own advocate.

What to Include

A cohabitation agreement is only useful if it covers the issues most likely to cause conflict.

1. Property brought in and acquired together

• Separate property. List the assets each partner owned before moving in together and confirm they stay separate.
• Joint property. Explain how property bought together—such as furniture, vehicles, or investments—will be divided if the relationship ends.
• Address both financial and non-financial contributions, including renovations, caregiving, or support for the other partner’s career.

2. The home

Real estate is often the biggest source of conflict. Address:

• Who owns the home, and in what shares, if it is jointly titled.
• Who pays the mortgage, taxes, insurance, and repairs.
• What happens if you separate, including whether one partner may buy out the other, whether the home will be sold, and how proceeds will be divided.
• What happens if one partner paid the down payment or funded improvements.

3. Household expenses and bank accounts

• How you will split rent or mortgage, utilities, groceries, and other day-to-day costs.
• Whether you will keep separate accounts, joint accounts, or a mix.
• How joint accounts will be divided if the relationship ends.

4. Debts

• Confirm that each partner remains responsible for debts brought into the relationship.
• Address how joint debts, including shared credit cards or co-signed loans, will be repaid.

5. Support after separation (“palimony”)

Decide whether either partner will provide support during the relationship or after separation, and if so, how much and for how long. If neither partner will owe support, say so expressly. Because a support promise must be written and signed to be enforceable (N.J. Stat. Ann. § 25:1-5 (West)), this term belongs in the agreement—not in a verbal understanding.

6. What happens if one partner dies

Unmarried partners do not automatically inherit from each other in New Jersey. A cohabitation agreement should work with estate planning documents—such as a will, beneficiary designations, powers of attorney, and health care directives—to protect both partners and ensure their wishes are enforceable.  Practice tip: A properly written joint deed with right of survivorship is iron clad if you want to be sure that if one of you dies the other retains the house.

7. Other practical terms

• Pets — who keeps them, and who pays for their care.
• Personal property — how sentimental or valuable items will be divided.
• Dispute resolution — whether you will use mediation or arbitration before going to court.
• Amendments — a clause requiring that any changes be made in writing and signed.

A few practical pointers

• Disclose finances fully. Candid disclosure of assets, income, and debts makes the agreement fairer and harder to challenge.
• Avoid pressure. An agreement signed freely, with time to review, is more likely to hold up.
• Keep it current. Revisit the agreement after major life events, such as buying a home, having a child, or a significant income change.
• Consider separate counsel. Independent legal advice is still the best way to protect both partners.

The bottom line

In New Jersey, a cohabitation agreement gives unmarried partners clarity and protection the law does not provide automatically. A support promise must be written and signed to be enforceable. Separate attorneys are no longer legally required, but independent advice, full financial disclosure, and clear terms on property, expenses, debts, support, separation, and death will make the agreement stronger.  Call today to get advice on your situation 856-227-7888!