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How Does New Jersey Divide Real Property For Unmarried Cohabitants?

In 2010, the New Jersey Legislature amended its Statute of Fraud’s writing requirement, adding subsection (h), requiring a writing for any “promise by one party to a non-marital personal relationship to provide support or other consideration for the other party….” N.J.S.A. 25:1-5(h).

In a recently reported trial court decision, the trial court found it appropriate to address partition for unmarried cohabitating parties that did not have a writing.  C.N. v. S.R. (Ch. Div., Jan. 17, 2020).

In the matter, the parties began their dating relationship in 2010.  They purchased a home and were engaged to be married in 2012.  They had a child together in 2016, and had a wedding ceremony in 2018; however, never legally married.

The home and mortgage were titled in the defendant’s sole name, but the plaintiff was considerably involved in the negotiations and the purchase of the home, including paying the majority of the down payment.  While together, the mortgage payments were paid from the defendant’s bank account; however, the plaintiff paid when the defendant was out of work, and paid the majority of the “upkeep costs.”

In July 2019, the defendant filed a complaint in the family part regarding child related relief.  The plaintiff filed a counterclaim for relief, including the partition of the residence.  The court bifurcated the issues and held a trial on the limited issue of partition.

Ultimately, the Court found that the legislative history leads to the conclusion that Subsection (h) was not intended to address partition of real property in the absence of a writing among unmarried, cohabitating engaged in a joint venture.  Relying on legislative history and prior case law, as compared to palimony, a party to a joint venture is entitled to accumulated assets.  As the plaintiff invested significant time and money to obtain and maintain the residence, he was entitled to partition.

Contact Townsend, Tomaio & Newmark, L.L.C. if you need assistance in dividing property after a separation, or to learn more about creating a cohabitation agreement.

By Carly J. Steinberg, Esq.