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Marriage/Domestic Partnerships/Civil Unions/Cohabitation/Palimony

ENFORCEABLE AGREEMENTS FOR COUPLES

Solemnizing a relationship ensures legal rights for the parties. It offers protections and privileges that a committed couple can provide for each other.

On June 26, 2015, the U.S. Supreme Court ruled that same sex marriage bans are unconstitutional and same sex couples can legally marry anywhere in the United States and have the same state and Federal benefits as opposite sex couples.

In the State of New Jersey, there had been the Domestic Partnership Act which was expanded by the Legislature to establish the Civil Union Act. It was passed in New Jersey so that the same sex couples would enjoy rights, benefits, burdens and obligations of civil marriage.

It intended to insure equality under the law in New Jersey. However, this was not universal because the Federal Government did not recognize the Civil Union as providing the same rights under the tax code or federal benefits as those for a married couple.

Today couples can still enter into Civil Unions or Domestic Partnerships if they qualify and choose to do so. In New Jersey, these agreements are recognized by the State, however, for Federal taxes and Federal benefits such as Social Security and Medicare, there is no eligibility without marriage.

DOMESTIC PARTNERSHIPS

Domestic Partnerships can be entered into by same sex couples or opposite sex couples who have reached the age of 62.

New Jersey will recognize Domestic Partnerships which have been entered into outside of the State of New Jersey.

Two people that meet all of the following requirements may enter into a Domestic Partnership under New Jersey law:

a. Both share a common residence
b. Both agree to be jointly responsible for each other’s welfare
c. Both are 62 years of age or older
d. Neither person is in a marriage, Domestic Partnership, or Civil Union recognized by New Jersey law
e. Neither person has terminated a Domestic Partnership within the last 180 days prior to filing a current Affidavit of Domestic Partnership (unless one partner has died)
f. That the two people are not related to each other by blood, adoption, or marriage closer than the fourth degree of consanguinity (third cousins or closer)
g. Both agree to be jointly responsible for each other’s basic living expenses during the Domestic Partnership
h. Both choose to share each other’s life in a committed relationship of mutual caring.

These are the basic requirements, however, domestic partners can agree to be responsible for each other in additional ways. To be clear about this, the partners should sign a contract. For example, they can agree that if they separate and terminate the partnership, they will split all of the partnership debts and/or partnership property equally. They can agree to provide support or not to provide support if the relationship ends.

In some ways, this extra contract is like a palimony agreement. If a couple is cohabitating and the relationship ends, the parties should have a written palimony agreement. Without a written agreement to enforce promises, no verbal promises will be enforced by the courts. A written palimony agreement where people cohabit protects both sides. Someone cannot later on make demands such as to be repaid for caring for the other person, paying for repairs to the house, etc. raising the house value.

Rights and benefits of Domestic Partners:

1. Right to make medical treatment decisions on behalf of the other partner;
2. Visitation rights equal to a spouse if in the hospital;
3. Right to make funeral arrangements;
4. Can claim a dependent partner in State of New Jersey taxes as a dependent. Cannot do this for Federal taxes;
5. Avoids New Jersey State Estate or Gift taxes where applicable;
6. Eligible for group health coverage for state employees;
7. Eligible for pension and retirement benefits if a domestic partner of state, county, or municipal employee;
8. If a domestic partner dies without a will, the domestic partner has the same rights of inheritance as does a spouse under the law;

RISKS

There are risks to forming Domestic Partnerships particularly if the people involved have low income and rely on public benefits.

Social Security benefits can be derived from a prior or deceased spouse’s work history. These benefits cease upon remarriage of the spouse. Because Domestic Partnerships are not yet recognized by the Federal government, these benefits will continue during the Domestic Partnership.

CIVIL UNIONS

Civil Unions were enacted in New Jersey in 2007 to afford same sex couples the same rights as heterosexual married couples in New Jersey. It expanded the Domestic Partnership Act.

Parties to a Civil Union have all of the same benefits, protections, and responsibilities under New Jersey State law. The same procedures as in dissolution of a marriage are followed. The laws of domestic relations including annulment, pre-marital agreements, separation, divorce, child custody, support, property division, maintenance, alimony, applies to parties in a Civil Union.

A Civil Union is not recognized by the Federal government for the same tax treatment as married persons nor are the Federal benefits such as Social Security on the spouse’s account or Medicare available as could be on the former spouse’s account. Because of this inequality with married couples, same sex marriage was legalized in 2015.

MARRIAGE

There are thousands of rights of married couples. Some are:

1. Ability to open joint bank accounts
2. File joint Federal and State tax returns
3. Health, car life insurance at married or family rate
4. Inheritance of spouse’s property upon death
5. Right to sue for spouse’s wrongful death
6. Right to receive spouse’s Social Security, Workers’ Compensation and Disability benefits.

DUTIES OF SPOUSES

1. Fiduciary duties. Truth about finances, truth about any criminal past. A marriage can be annulled because of fraud;
2. Spouse cannot hide funds, waste marital assets, or send marital assets offshore without the other spouse’s consent;

The laws of domestic relations applies if the marriage is terminated; i.e., alimony, equitable distribution.

COHABITATION

Couples who live together and do not memorialize their intentions and address their expectations will have little or nothing to rely upon in the event of termination of the relationship, death, illness, injury. A lot has to do with financial protections but not all. For example, if one’s paramour gets sick, you may not be allowed to discuss his condition with the doctor.

If an apartment is rented in both names and one party leaves, the other must abide by the lease whether or not it is affordable. A written agreement can address these concerns.

There can be serious lifelong consequences. If a dependent woman has children and the man leaves for someone else, she can get child support but nothing to help support her and no medical coverage and often nowhere to live.

The divorce rate is high. By entering into a marriage, it will not necessarily prevent divorce, but one purpose is to afford the couple reasonable expectations. It provides a structure of obligations designed to avoid people becoming homeless, public charges, and neglected children. This occurs frequently.

Marriage, Civil Unions, and Domestic Partnerships are applied for at municipal offices and registered accordingly. The municipalities have specific instructions and administrative requirements to solemnize the relationship.

PALIMONY REQUIREMENTS

A palimony contract is a separate matter and can be drafted by an attorney. Both sides should have their own attorney review the agreement.

SOLEMNIZE TO ESTABLISH YOUR OBLIGATIONS AND EXPECTATIONS

Couples who are committed to each other can solemnize their relationship through marriage, a Civil Union, or Domestic Partnership, a palimony contract.

Love should not exclude identifying one’s expectations to each other and forming an agreement that has enforcement value.

These laws are constantly changing. Please consult with an attorney regarding your facts and circumstances.

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