Is Common Law Marriage Real in New Jersey? Find Out Now

Common law marriage, also known as a marriage by habit and repute, is a form of legal union that occurs when a couple lives together for a period of time and holds themselves out to the public as being married. Unlike a ceremonial marriage that requires obtaining a marriage license, couples in a common law marriage do not have a marriage certificate and did not have a formal ceremony.

In this blog post, we’ll explore the ins and outs of common law marriage in New Jersey. We’ll debunk some common myths, discuss the legal realities for couples who believe they may be in a common law marriage, and provide key information on how unmarried couples can protect their rights and responsibilities in the state. Whether you’re simply curious about common law marriage in the Garden State or want to gain clarity on your own relationship status, read on for valuable insights.

What is Common Law Marriage?

Before diving into New Jersey’s stance, let’s start with a high-level overview of common law marriage.

Common law marriage exists when a couple lives together for a significant period of time and holds themselves out to friends, family, and the public as being married, despite never having gone through a formal ceremony or obtaining a marriage license. Generally, couples must meet certain requirements to establish a common law marriage:

• Live together for a minimum length of time (often 7 years or more)
• Present themselves as married – using the terms “husband” and “wife”
• File joint tax returns, have joint bank accounts and credit cards
• Share last names
• Raise children together and both claim parental roles

If these criteria are met, a legal common law marriage is created in states that recognize this arrangement. It provides couples with all the legal rights and responsibilities of a traditionally married couple.

Now that we’ve defined common law marriage, let’s examine its status in the state of New Jersey.

The Legal Status of Common Law Marriage in New Jersey

Here’s the key fact to understand about common law marriage in New Jersey: it is not legally recognized.

New Jersey abolished the creation of new common law marriages decades ago. The state will only recognize a common law marriage if it was validly created in another state that still allows for this type of legal union.

A Look Back: When Common Law Marriage Ended in New Jersey

Up until 1939, New Jersey recognized common law marriage arrangements that were formed within the state. However, on January 1, 1940 New Jersey abolished any new common law marriages from being legally valid.

The statute that ended common law marriage is N.J. Stat. § 37:1-10, which plainly states:

“No marriage claimed to have been contracted in this state prior to December first, nineteen hundred and thirty-nine, shall be valid unless the contracting parties:
(1) Had capacity to marry…
and
(2) Freely agreed at the time to become husband and wife…”

This key clause makes it clear that only marriages formalized with a license prior to 1939 would be legally valid from that point forward.

While New Jersey does not allow common law marriages to be created within the state, there is one exception under the U.S. Constitution…

Recognition of Common Law Marriages from Other States

Although New Jersey residents cannot enter into a common law marriage, the state is required to recognize valid common law marriages formed in other states under the legal principle of the Full Faith and Credit Clause (Article IV, Section 1 of the U.S. Constitution).

Therefore, if a couple lives together and meets the requirements to form a common law marriage in a state that allows it (e.g. Colorado, Montana, Texas), that marriage will be considered legal in New Jersey as well.

However, couples must be cautious. Merely living together in a state with common law marriage, without presenting as married, does not automatically create a valid marriage. And once the couple leaves the state, additional requirements may exist to have the marriage formally recognized.

Now that we’ve cleared up the legal validity of common law marriage formed within New Jersey, let’s explore some of the common myths.

Common Myths and Misconceptions

Given that New Jersey abolished common law marriage over 80 years ago, there are many myths and misconceptions floating around about its existence or creation today. Let’s address some of the key ones:

Myth 1: Living Together for 7-10 Years = Common Law Marriage

One of the biggest misconceptions is that unmarried couples who live together for an extended period of time (e.g. 7-10 years) can be considered to be in a common law marriage in New Jersey.

This is false. No amount of cohabitation establishes a legal common law marriage within the state. Couples may sincerely believe they are common law spouses after decades of living together, but without a formally registered marriage, they are not married under New Jersey law.

Myth 2: Having Kids Together Means You’re Common Law Married

Another common myth is that unmarried couples who have children together and co-parent can claim to be in a common law marriage.

This is also untrue. Raising children together and claiming parental roles does not meet the legal requirements for a valid common law marriage in New Jersey. Even if the couple presents as “mommy and daddy” to their kids, without a formal marriage, they are not spouses in the eyes of New Jersey law.

Myth 3: Referring to Your Partner as “Husband” or “Wife”

Some individuals believe that referring to their significant other as “my husband” or “my wife” indicates they are in a common law marriage. This is false and has no legal bearing. Calling each other spousal terms is not sufficient to create a marital union in New Jersey.

Myth 4: Changing Names Indicates Common Law Marriage

Finally, a persistent myth is that if an unmarried couple changes their last names to a shared family name, it establishes a common law marriage. Perhaps they change last names for simplicity after having kids together. Whatever the reason, this action does not create spousal rights or obligations.

With the common myths dispelled, let’s look at the reality of relationships without marriage in New Jersey…

The Reality: Legal Implications for Unmarried Couples

Despite the prevalence of myths and misinformation, the reality remains – without a valid marriage license, New Jersey couples are not married under the law.

This has important legal implications that unmarried couples should recognize:

• No spousal inheritance rights: Without a legal marriage, couples do not have inheritance rights if one partner dies without a will. Any property or assets owned individually are not automatically granted to the surviving partner.
• No spousal benefits: Unmarried couples cannot access each other’s Social Security, medical insurance, or other spousal benefits. They must maintain individual plans and accounts.
• No automatic joint custody of kids: For unmarried couples with children, there is no presumption of joint legal or physical custody if the relationship ends. Custody must be determined through other legal action.
• Shared property requires legal action: Any shared assets like homes or vehicles requires directed legal intervention, like contracts and deeds, to protect each partner’s rights and ownership interest.
• No spousal protections in court: Laws around testifying against a spouse, confidential communications, and spousal privilege do not apply. Unmarried partners can be compelled to testify against each other.

The absence of marital rights makes it crucial for unmarried couples to take proactive legal steps to protect their interests…

Legal Options for Unmarried Couples in New Jersey

There are several options under New Jersey law that allow unmarried couples to gain certain rights and protections:

Domestic Partnership

New Jersey has allowed registered domestic partnerships since 2003. This formal relationship provides limited spousal rights to same-sex couples and unmarried heterosexual couples over age 62.

To establish a domestic partnership, couples must share a common residence and prove financial interdependence. Some, but not all, spousal benefits are granted through domestic partnerships.

Civil Unions

As an alternative to domestic partnerships, New Jersey has allowed same-sex civil unions since 2007 (prior to the federal legalization of gay marriage in 2015).

Civil unions extend all state-level spousal rights, protections, and responsibilities to same-sex couples. Couples obtain a civil union license through the local registrar and have their union certified within 30 days, similar to a marriage.

Legal Documents

All unmarried couples should consider legal documents that designate rights, including:

• Wills – Dictate inheritance of individually owned assets and property
• Advance healthcare directives – Appoint each other as legal health/medical decision-makers
• Powers of attorney – Allow financial and legal decisions to be made by the designated partner
• Parenting plans – Establish custody arrangements and child support for unmarried parents

Properly executed legal documents can provide some critical protections for unmarried couples. But what about day-to-day rights during the relationship?

Protecting Your Rights in a Domestic Partnership

For unmarried couples who want to enjoy pseudo-marital benefits and rights without formal marriage, several options exist:

Cohabitation Agreements

A cohabitation agreement is a legally binding contract that provides property and financial protection for couples living together. It can designate:

• Ownership of assets purchased during the relationship
• Division of shared expenses like rent, utilities, etc.
• Distribution of assets and debts if the couple separates

Cohabitation agreements give unmarried couples clarity around money and property matters, much like a prenuptial agreement does for married spouses.

Estate Planning

Estate planning is critical for unmarried couples to ensure their partners inherit assets, particularly since no spousal inheritance rights exist. Key estate planning steps include:

• Wills – Bequeath individually owned assets to the partner
• Joint accounts – Designate the partner as account beneficiary
• Payable on death assets – Name the partner as beneficiary for bank/retirement accounts
• Trusts – Create a revocable living trust to hold assets intended for the partner

Parenting Plans

Unmarried parents should establish a parenting plan or custody agreement to designate physical and legal custody, visitation arrangements, child support, and other parental rights and duties. These plans protect both parents’ relationships with their children.

While not identical to the marital rights spouses enjoy, domestic partners can take important legal steps to promote their interests during a relationship and in the event of separation.

Recognizing Out-of-State Common Law Marriages

We’ve covered a lot of ground on common law marriage formation within New Jersey. But what if you entered into a common law marriage elsewhere? As noted, New Jersey must recognize valid common law marriages from other states.

If you lived with your partner in a state like Colorado, Texas, or Pennsylvania and met the requirements to establish a common law marriage there, you are considered legally married for purposes of New Jersey law.

Some tips for couples with out-of-state common law marriages:

• Get documentary proof – Obtain statements/affidavits from people who knew you as a married couple. Seek tax or other records showing joint filing.
• See legal guidance – Consult with a New Jersey family law attorney to understand how your common law marriage is recognized and what rights you have.
• Review benefits eligibility – Check on the impact to Social Security, health insurance, and other spousal benefits, particularly if separating.

While recognized, these out-of-state common law marriages should be claimed carefully within New Jersey through proper evidentiary steps and legal counsel.

Conclusion

Despite the prevalence of myths about common law marriage, the reality is that New Jersey only recognizes lawful marriages formalized with a license. Unmarried couples have no marital rights.

However, domestic partners can take steps to promote their interests during a relationship and protect each other if the relationship ends. Formal options like civil unions confer limited spousal benefits, while cohabitation agreements, proper estate planning, and parenting plans can also provide important legal protections.

The key takeaway is that unmarried couples must be proactive. Relying on common law marriage myths will prevent your relationship from being properly secured under New Jersey law. Seeking clarity on your legal status and rights is an essential first step.