Moving On After Moving In: The Case for Including Unmarried Partners in New Jersey Family Law

Moving On After Moving In: The Case for Including Unmarried Partners in New Jersey Family Law
New Jersey LAWYER

New Jersey law does not provide unmarried cohabitants with the same rights as married cohabitants. Although the two types of relationships may have identical commitment, stability and social utility, New Jersey law treats them unequally. Upon divorce, former spouses may seek alimony and equitable distribution of the property accumulated during the marriage. Former unmarried partners, however, cannot seek alimony or equitable distribution of property accumulated during the relationship. Instead, such partners must rely on common law theories of recovery, which can be difficult to prove and are not well suited to family-type problems.

At least 3.4 percent, if not closer to 5 percent, of all New Jersey couples have no right to property acquired during a relationship if it was not purchased by them and no assurance of financial support upon its termination unless some type of contract is proven. The New Jersey legal structure has been slow to adapt to the significant increase in the number of unmarried living arrangements.

Taking steps to include unmarried partners in a legal structure that currently only protects married spouses, however, would help to stabilize large numbers of families and strengthen society both in the domestic and non-domestic spheres.

The New Jersey Legislature can accomplish this by amending the alimony and equitable distribution statutes and applicable court rules to include those unmarried couples who demonstrate sufficient family-like features to warrant the relief provided by divorce laws.


The justifications for limiting the remedies of alimony and equitable distribution to divorced couples are derived from traditional concepts of the prototypical family in American life. The traditional definition of family as being a unit comprised solely of those persons who are related by blood, marriage or adoption excludes the many families who have non-traditional living arrangements but whose relationships are as committed as many marriages. Some examples of alternative family structures that are excluded by the traditional definition include: step-families; unmarried heterosexual partners; lesbian, gay, or bisexual partners; children of such relationships; and commitments among more than two adults (a common occurrence among the elderly). Although the traditional definition of family should be abandoned, another test must take its place to distinguish those relationships that deserve benefits from those that are less committed. The American Home Economics Association adopted a definition of family as "two or more individuals who share goals, resources and a commitment over a period of time." Another definition involves the concept of a self-defined family, that is, individuals legally declaring themselves to be a family. Yet another model is the domestic partnership model, which requires the tripartite showing of an actual and apparent family relationship that has been in existence for a substantial period of time. The realization that "the family is that climate that one comes home to and it is this network of sharing and commitments that most accurately describes the family unit" is extremely important. All relationships that exhibit this type of dedication should be equally recognized in the law.

Expanding the legal recognition of family beyond the legal mechanism of marriage is especially appropriate given the shrinking role that marriage plays in family life and the pervasive change in society's attitudes toward sex, marriage and divorce since the 1960s. The increased divorce rate has contributed to reducing the prominence of marriage as more people become single through divorce and many reject marriage in the first place. In addition, more children are being raised in families without two biological parents. The combination of divorce and remarriage, economic prosperity, sexual equality, "greater geographical mobility, the construction of alternative families, and the growing fragility of urban community infrastructures has led to an increased likelihood of a split between the person conceiving and/or giving birth to the child and the person or persons raising her."


According to a 1990 New Jersey census, there are 95,387 unmarried partner households in New Jersey out of 2,794,316 total households. Thus, 3.41 percent of all households in the state are comprised of unmarred cohabitants. Supporting that data is the United States Census Bureau's General Population Characteristics 1990 study that tracked the number of people in New Jersey according to their relationship to the householder, or head of household. According to that study, 127,194 householders lived with non-family members; thus, 4.6 percent of all New Jersey households were headed by a non-family householder. The 1990 Census was the first in New Jersey to inquire into domestic partnerships. The recent accounting of those households, and their statistical significance confirm the need for legal and legislative recognition of these households.

The nationwide statistics of unmarried cohabitators in the 1990s are even higher than the New Jersey findings. Nationally, there were census, there are 3,039,000 unmarried-couple households, 4.9 million by some estimates, and 52,147,000 married couples in 1991. Thus, in 1991, between 6 percent and 10 percent of all American households were comprised of unmarried cohabitants. Further, 31.7 percent of all unmarried-couple households had children under 15 years of age.

The 1991 census reflects a trend that is more evolutionary than revolutionary. From 1960 to 1970, the number of cohabiting couples increased 700 percent. Between 1970, and 1986, the number of cohabiting unmarried couples more than quadrupled, rising from 523,000 to well over 2,000,000. Given these figures and the growing number of people who choose not to marry, the existing legal treatment of unmarried couples in New Jersey must be critically scrutinized.


Under current New Jersey law, the remedies available to unmarried cohabitators who terminate their relationship are quite limited when compared to the fights afforded married couples upon dissolution. Pursuant to statute, alimony is available only in divorce or nullity actions, while equitable distribution of martial assets is available only in divorce actions. Thus, cohabitators are not entitled to these remedies. Any doubt surrounding the issue of whether cohabitators are entitled to alimony and equitable distribution under the statute was resolved by the New Jersey Supreme Court in Kozlowski v. Kozlowski and Crowe v.DeGioia. In Kozlowski, although the couple cohabited for 15 years as a "normal family unit" before separating, the court held that the statute limits awards of alimony to divorce or nullity actions and allows equitable distribution only in divorce. Likewise, in Crowe, the court held that the power to award alimony is strictly statutory. Therefore, alimony may be awarded only in a matrimonial action for divorce or nullity.

Despite the statutory constraints, the New Jersey Supreme Court recognized the growing importance of cohabitation relationships when deciding Kozlowski and Crowe. In Kozlowski, the court turned to the seminal case Marvin v. Marvin and adopted the California court's conclusion that "the mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many." In Crowe, the court acknowledged that "ncreasing numbers of unmarried couples live together. The number of households comprised of unmarried partners rose from approximately 12,000 in 1960 to more than 1.5 million in 1980." With this recognition came the court's adoption in Crowe of the palimony doctrine.

Besides alimony and property distribution, the ability to retain counsel and pay for ongoing litigation expenses are critical factors to a fair and equitable dissolution of a family-type relationship. Counsel fees are available to a successful party only in the following actions: divorce, nullity, support, alimony, custody, visitation and equitable distribution. Due to the specific language of the counsel fee court rule and narrow statutory definitions, the New Jersey Supreme Court in Crowe held that counsel fees cannot be awarded in a contract action for support brought by an unmarried cohabitator.

In light of the societal changes discussed above, the Crowe decision should be revisited. As Justice Stein recognized in his partial dissent in Crowe v. De Gioia (II), counsel fees would "simply reflect a pragmatic acknowledgement that after a prolonged cohabitation, whether solemnized by marriage or not, one party's economic condition may be so dependent on the other party as to make the availability of a counsel-fee award a virtual prerequisite to judicial relief."

What makes the law particularly difficult for unmarried partners seeking judicial relief is that New Jersey courts have taken inherently contradictory positions on the stability of cohabitators for the purposes of "spousal" support. On the one hand, cohabitation is unstable and therefore unworthy of protections afforded families. On the other hand, New Jersey courts have held that cohabitation by a former spouse receiving alimony constitutes changed circumstances sufficient to justify the reduction or termination of alimony if the relationship has an economic impact on that former spouse. Implicit in this principle is the conviction that cohabiting relationships can be secure enough to provide for a dependent former spouse, thereby freeing the former breadwinner from his or her obligation. 'Me fact that cohabitation after divorce is sufficiently stable to warrant the termination of alimony cannot be reconciled with the apparent belief that cohabitation without marriage is too impermanent to justify alimony upon dissolution of the cohabiting relationship. New Jersey courts have failed to recognize and rectify this anomaly.


Despite the fact that the Legislature and courts will not recognize unmarried partners for the purposes of support, equitable distribution and counsel fees, the courts have provided limited relief based upon theories of contract and trust law to unmarried partners dissolving a relationship. For example, a legal obligation to provide "support" may arise by virtue of express or implied promises,quasi-contract or unjust enrichment. Under the proper circumstances, remedies such as resulting trusts and constructive trusts may also be appropriate as methods of distributing property.

The elements required for these common law actions are often difficult to prove. For instance, to prove the existence of a contract, the partner seeking support must ascertain and demonstrate the intent of the parties, which is often an arduous inquiry into the conduct, actions and memories of the former partner.

In contrast, a spouse may obtain alimony by demonstrating objective factors other than intent, such as duration of the marriage, standard of living and earning capacities of the parties. To prove the existence of a resulting trust, a party must prove that property was purchased with the intention by the title holder to hold title in trust for the party providing the consideration. Again, the equitable distribution statute requires an analysis of objective factors to determine the appropriate distribution of property.


Despite judicial and statutory barriers to substantive relief, recent legislative enactments have tended to create a symmetry between married and unmarried partners in a few limited circumstances. The amended New Jersey court rules provide that all family matters, including support actions between unmarried cohabiting adults, are to be decided in the Family Part of the Chancery Division. The comments to amended rule 5:1-2, state:

It is the apparent intent of the Rule to include within this category of undefined family actions support and property claims among persons who constitute their relationship in a manner comparable to marriage but who are not married to each other. Presumably this category will include unmarried cohabiting adults whether or not of the same sex and children who are part of their households.

The inclusion of unmarried cohabitants within the class of individuals who are entitled to bring their complaints before the Family Part represents the belief that actions involving cohabitants arise out of a family or family-type relationship. Such recognition reinforces the conclusion that actions involving unmarried cohabitants are analogous to matrimonial litigation and that the need for protecting the financial and property rights of unmarried partners is just as compelling as it is in most matrimonial cases.

An additional indication that the Legislature has determined that unmarried cohabitants may comprise a family unit is the protection afforded to them by the recently revised Prevention of Domestic Violence Act of 1991. That statute protects victims of domestic violence, defined as individuals at least 18 years old who have been subjected to domestic violence by a present or former spouse; a present or former household member; or a person with whom the victim has a child in common. The legislation protects victims of violence in "family-like" settings and does not predicate relief on marital status. Given the broad scope of the Domestic Violence Act and the liberal interpretations of the term "household member," it seems inconsistent and unjustified for the Legislature to physically, but not financially, protect unmarried cohabitants.


The inability of the New Jersey judiciary and Legislature to keep pace with the dynamic social landscape is only emphasized by the legal movements in other states that have recognized a broad meaning of family and afforded property rights to unmarried partners. For example, the New York Court of Appeals has recognized an expanded definition of family in Braschi v. Stahl Associates Co. In Braschi, the court held that although the plaintiff was the deceased tenant's homosexual lover, he was not excluded from seeking protection from eviction under New York City rent regulations. The regulations did not allow the eviction of surviving spouses or other members of the deceased's family living with the tenant. The court declared that the regulatory protection "should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life." In this case, the Court of Appeals found that , "a more realistic, and certainly equally valid view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence." The Braschi court set forth an objective test using the following factors to determine the stability and significance of the relationship: exclusivity and longevity; level of emotional and financial commitment; manner in which the parties have conducted their everyday lives and held themselves out to society; and the reliance placed upon one another for daily services.

Likewise, in California. the Appellate Court in Butcher v. The Superior Court of Orange County held that an unmarried cohabitant may state a cause of action for loss of consortium. In that case, a couple lived together for eight years and had four children, but they had never been formally married. The court found that besides formalization, "the relationship of unmarried cohabitants possesses every characteristic of the spousal relationship." The court consequently divided the property acquired by the couple between the partners according to the state's divorce statute.

Along with progress in some courts, many state legislatures and municipalities have enacted domestic relations laws that reflect the evolution of living relationships more accurately. Twenty-five localities in the United States including the cities of New York, San Francisco, Seattle, Minneapolis, Washington, Berkeley and Madison (Wisconsin) have created legislation for domestic partnerships that offer varying forms of benefits for unmarried domestic cohabitants. In New York City, Mayor Dinkins has created a city registry for domestic partners who, upon signing the registry, are entitled to the following benefits that were previously reserved for married spouses: visitation rights at municipal hospitals and city jails; unpaid leave if they work for the city; and standing as married couples in qualifying for apartments and in inheriting a lease in city-owned or leased residential buildings. Similarly, the New York State Legislature is presently considering a domestic partnership bill introduced in February, 1993. That bill offers domestic partnerships protection against discriminatory practices in employment and amends the insurance laws to require employers who cover spouses of employees to extend health coverage to domestic partners as well.

As New York and the other jurisdictions discussed in this article recognize, the commitment, stability and social importance of cohabiting couples parallels the marriage relationship and should no longer be ignored. Alternatives to marriage are becoming increasingly popular and commonplace. These societal trends, as confirmed in recent state and national census surveys, suggest that the time is ripe for New Jersey to re-evaluate the distinctions drawn over a decade ago between the dissolution of married and unmarried partners. Legal change is especially necessary to reconcile the discrepancy between those laws and court decisions that allow domestic partners to sue in Family Part for palimony or for damages under the Domestic Violence Act and those laws and decisions that deny these same individuals "spousal" support, equitable distribution of property acquired during the relationship, counsel fees and litigation costs. Without the counsel fees in particular, many individuals are effectively prohibited from seeking any judicial relief, even under presently recognized theories of contract and trust.


In addition to seeking consistency and fairness to all people in familytype relationships, legal change is necessary to promote stability among families and communities. The children of partners who seek support and distribution invariably suffer from the destabilization or impoverishment of one of their parents. If divorce laws seek to promote stability and the status quo to the extent possible during and after a divorce for those from traditional families, the same stability and the status quo should be promoted for those from non-traditional families whose family unit dissolves.

The New Jersey judiciary has a proud tradition of confronting controversial social issues. The Legislature and courts of this state should act to better protect the financial and property rights of those in relationships not currently recognized by the legal mechanism of marriage. For a society in need of respect for its disparate components, such action would strengthen us all.