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Partition Remedy Remains Available for Non-Married Couples to Divide Assets


Our New Jersey family law attorneys are increasingly asked how property is equitably divided between splitting couples who shared everything except a last name.

Fact is, a growing number of adults are cohabiting without making it official through marriage. The Pew Research Center reports that among adults ages 18 to 44, nearly 60 percent had lived with an unmarried partner at some point in their lives. Half had never been married before. These figures represent a sharp uptick compared to years past.

Normally in a divorce, the remedy for divvying up property between partners is known as equitable distribution. As noted in N.J.S.A. 2A:34-23.1, this is not a precisely equal division, but rather a consideration of what is most fair in light of all the circumstances.

However, those who are separating without dissolving a marriage don’t have the same go-to. However, if they co-own property together, there is an equitable distribution remedy known as partition.

What is Partition of Property?

Partition is a means of separating property that is held by co-owners as tenancy in common or a joint tenancy – but not by spouses as tenants or under the state’s domestic partnership law. The right to partition is spelled out in N.J.S.A. 2A:56-1. Under this provision, anyone who is a co-owner of property can seek partition of it, presuming the right to do so has not previously been waived.

Recently, a New Jersey trial court released a decision with respect to partition of property among non-married co-habitants. The court in S.N. v. C.R.held that unmarried couples can still seek partition of a shared home – assuming there is evidence that the purchase was a joint venture – even if they don’t have it in writing, as seemingly necessitated in a 2010 amendment pertaining to palimony.

(As our Monmouth County family law attorneys can explain, palimony is money paid by one unmarried partner to the other at the end of their marriage-like relationship, per a court order. It is not a term found anywhere in the actual statutes, but it can be an option worth exploring for separated couples, with legal grounds differing from alimony/spousal support. Courts now require a written agreement between couples before they can order palimony.)

In the S.N. v. C.R. case, the two first became romantically involved in 2010 and moved in together shortly thereafter.

Two years later, they purchased a home. Although the residence and mortgage were individually titled to the plaintiff, the defendant was heavily involved – selecting/communicating with the realtor, providing two-thirds of the down payment, choosing and paying for the inspector, receiving the inspection report (which listed him as the only client) and selecting the closing attorney. He also negotiated a seller’s concession of $10,000, and both he and the plaintiff were named insureds on the homeowners’ insurance policy.

He told the court that at the time, he believed he and the plaintiff would be living together for the rest of their lives. The two became engaged four years after they moved in together, and even had a “wedding ceremony” attended by guests – though they were never legally married. One year after that ceremony, the pair split.

When they had lived together, plaintiff was the one primarily making the mortgage payments – 87 of the 96 that had been made. Defendant paid the rest when plaintiff was out of work, and he also took out a loan against his retirement account to lower the mortgage principal and monthly payments. He also paid for upkeep of the home, including security, pest control, landscaping and utilities, oversaw various contractors working on the home and helped to furnish it.

Last July, plaintiff filed a complaint in the non-dissolution unit of the family court (the sector that helps facilitate separations of non-married couples). Initially, the pair were only interested in resolving child custody, parenting time and child support issues. But then defendant filed a counterclaim, which included personal financial relief, later amended to include partition of the residence.

Mediation failed, and the case went to trial, at which the court deemed some testimony by plaintiff to be not credible. Specifically, the court took issue with her characterization of the home as her personal individual investment, when in fact she entrusted substantial tasks and expenses to her ex. Furthermore, in her case information statement, she indicated their “date of marriage” as back in 2012 (a good example of why you should trust a lawyer to fill out this paperwork rather than do it yourself).

In a case like this, where both parties were heavily involved and/or invested in the buying, upkeep and higher equity to a property that’s only titled in one of their names, courts will often rely on partition to equitably distribute.

Plaintiff argued that she couldn’t be compelled to equitably distribute the property because the pair did not have a written palimony agreement (or even an oral one). However, the court found this wasn’t necessary because palimony differs from partition.

Although the couple did not have a written palimony agreement, the court decided it didn’t matter because palimony differs from partition. As noted in the 2008 New Jersey Appellate Court palimony case of Connell v. Diehl, a promise of lifetime support on its own won’t necessarily extend a claim against one’s assets. But if two unmarried but cohabitating people engage in a joint venture to buy property where they both reside, then they can seek partition of that property if the relationship dissolves. For this, formal agreements are not required.

To establish a joint venture, the party will need to show some evidence of their:

  • Contributing money, effort, property, skill or some other asset;
  • Joint property interest;
  • Right of mutual management or control;
  • Expectation of profit;
  • Right to participate in profits.

Based on these and other factors, the court in S.N. v. C.R.held that defendant was entitled to partition rights and equitable distribution of the property.

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