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Issues for Non-Married Couples

There is no “common-law” marriage in the State of New Jersey, and therefore a couple cannot be deemed married just by holding themselves out as such. The unmarried couple might buy a home together, have children together, and acquire debt together. But if they separate, they will not be afforded the same rights as married couples that separate.

Still, when unmarried couples separate, they often face the same issues as divorcing couples. These issues include child custody, child support, division of assets, division of debts, and sometimes palimony (a promise made in writing to support the other person in the relationship after the break-up).

When a child is born to a married woman, there is a legal presumption the child is the husband’s biological child. There is no legal presumption when a mother is unmarried. So, how is paternity determined when the mother is not married? From the onset, an unmarried mother and an unmarried father need to establish paternity of the child even when they are living together in one household, and their family unit is intact. The situation can become overly complicated if the mother and father separate before paternity has been established.

Paternity is established when the father signs the birth certificate, he signs a parentage certificate or when an application is filed in the family court to establish paternity. Ensuring that paternity is determined allows one parent to assert the child’s rights for support and allows the other parent to maintain legal and physical custody rights.

There is no hard and fast rule about handling division of assets and debts in the absence of an agreement between a separated unmarried couple. The courts will look at whether the asset was held individually or jointly, how it was acquired, and how it was treated during the relationship. Instead of applying family law statutes and case law to determine an outcome, the courts will apply the principles of contract law, equity, and common law.

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