Buying your first home is a monumental time in a young couple/ young adult’s life and is typically met with excitement about the future as well as the feeling of accomplishment. Especially in today’s society many young adults are buying a home prior to getting married or even prior to getting engaged which poses the daunting question, what happens if you break up? Now the feeling the of excitement and accomplishment is replaced by fear of the unknown. Fortunately, there is no reason to stress!
In New Jersey, unmarried couples who have purchased real property as a joint venture are entitled to seek a “partition” of that property. “Partition” means the division of property among co-owners. Specifically, real property held by co-owners as a tenancy in common or a joint tenancy (but not by spouses as tenants by the entirety or by N.J. registered domestic partners) may be partitioned. This process is governed by New Jersey statutory law: N.J.S.A. 2A:56-1. Pursuant to N.J.S.A. 2A:56-1 any co-owner can seek a partition, provided he/she has not previously waived their right to do so. Although properties can be physically divided that is not practical especially with residential properties, and more often Court will order a sale of the property and an equitable division of the proceeds among the co-owners. See N.J.S.A. 2A:56-2. The Court may also order a partition which would permit one co-owner to purchase the interest(s) of the remaining co-owner(s) in lieu of a physical division of the property or a court-order sale.
It is also important to note that there is no prerequisite that a cohabitating/unmarried couple have an official written contract regarding the said property. Courts will presume that the parties intended to deal fairly with each other and will specifically look to see who contributed towards the purchase and maintenance of the home when deciding how to partition the property. Thus, the fact that the purchase was only under one cohabitant’s name is not significant.
Litigation can be costly therefore we advise that you attempt to settle the matter, however if attempts to settle there is recourse.
Another question you may have is whether or not you are entitled to financial support should you wish to maintain the home but are not capable of doing so without support from your ex. In other words, are you entitled to “palimony”? While palimony sounds similar to alimony, it is very different than alimony (ie. spousal support) and the legal requirements are vastly differently.
In 2010, the New Jersey legislature amended its statue of frauds N.J.S.A. 25:1-5 to include section (h) which states,
“No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:…(h) A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.”
This means that in order to be awarded palimony in New Jersey there must be a written agreement signed by the person promising financial support and both parties must seek independent advice from an attorney about the agreement. With that being said, if you are in a long-term relationship but not married make sure you protect yourself per this statute or you may find yourself with little to no legal alternatives.
Kimberly Greenfield, Esq. is an Associate with Adinolfi, Molotsky, Burick & Falkenstein, P.A. and practices all aspects of divorce and family law. If you are an unmarried/cohabiting homeowner no longer together or in need of financial support we can help put your mind at ease by contacting 856-428-8334 for a consultation.