If you and your partner have decided that you do not necessarily want to get married, but you do want to live together in a committed relationship, you would be wise to consider whether or not you might need a cohabitation or palimony agreement. Current New Jersey law allows legal agreements between partners living together who are not married to bring claims against one another based on a promise of financial support or a promise to share separately owned property (sometimes known as a “palimony” claim) only if:
- The agreement is in writing;
- The party promising to provide the financial support or property signed the agreement, and
- Both parties received advice from separate attorneys before entering into the agreement.
Differences between a Cohabitation / Palimony Agreement and Prenup or Postnup
Like prenuptial or postnuptial agreements, cohabitation / palimony agreements create flexibility and allow couples to decide between themselves how they wish to share the rights and responsibilities of their lives together. The major difference is that married or civil union partners who decide to end their relationship and do not have a prenuptial or postnuptial agreement will be bound and protected by laws creating rights of spousal support and property division between divorcing spouses. While unmarried couples without a palimony agreement will not be bound and protected by such laws.
Unmarried couples will still have joint rights to any property they actually own together, and all couples with children, regardless of marital status or agreement, will be bound by child support and child custody laws.
If you are currently in a registered domestic partnership in New Jersey, you should consider a domestic partnership / cohabitation agreement. Although New Jersey law gives registered domestic partners rights and obligations that do not apply to other cohabiting partners, registered domestic partners do not have similar rights to alimony or equitable distribution of property upon dissolution of their relationship, and the New Jersey Uniform Premarital and Pre-Civil Union Agreement Act does not apply to cohabitation or domestic partnership agreements.
Some of the issues couples who are living together may wish to clarify in a cohabitation agreement include the following:
- Providing Economic Protection for a Dependent Partner. Laws regarding alimony or spousal support and division of marital assets and debts provide some protection against future economic consequences for a married or civil union partner who leaves the workforce to care for a couple’s home or children. Other partners have no such protection without a cohabitation or domestic partnership agreement.
- Owning Property Together. If you own or plan to acquire property with your live-in partner, or if you want to give your partner ownership rights in property that you own separately, you can use a cohabitation agreement to clarify how you would divide such property if your relationship comes to an end.
- Parenting Children. Although parents cannot make future custody arrangements that would be binding in court, other agreements they make sometimes impact future child custody or visitation rights. If you and your partner have children together, or if both of you are caring for the biological or adopted child of one partner, seek advice from an attorney regarding how a cohabitation agreement or a domestic partnership agreement might impact your future parental rights.
- Pet Custody and Care. As difficult as it is for many loving pet-owners to believe, pets are considered property in New Jersey. This means that couples who own pets together can decide ahead of time which partner the pet will live with after a separation.
If you believe that your relationship would benefit from a cohabitation / palimony agreement, do not hesitate to raise the issue with your partner and seek advice from a knowledgeable attorney. Both of you have a right to know what kind of promises will be legally binding in a court of law and what kind of promises will not be. The law regarding palimony and cohabitation agreements is still evolving. To be sure that you have the most up-to-date information, contact an experienced family law attorney.