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FAMILY LAW

Updated August 11, 2014

The information contained in this page is for general purposes only. Each situation, including your own, is unique, and the law may apply differently to you.

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  • Does either New Jersey or Pennsylvania recognize common-law marriage?
  • Is no-fault divorce available in New Jersey or Pennsylvania?
  • How is alimony and property division determined?
  • What about child custody and support?
  • How can my same-sex partner and I protect our relationship legally?
  • Can my partner and I adopt children?

Does either New Jersey or Pennsylvania recognize common-law marriage?
No. Common-law marriage refers to the practice of a couple holding themselves out a husband and wife to the community generally, without benefit of legal marriage. New Jersey has not recognized common-law marriage for many years. Pennsylvania had, until very recently, been one of only a handful of states that continued to recognize the validity of common-law marriage. However, in September 2003, the Superior Court declared the practice invalid, and the legislature subsequently incorporated the Court's ruling into the Pennsylvania Code.


Is no-fault divorce available in New Jersey or Pennsylvania?
Yes, both states offer some form of no-fault divorce. In both Pennsylvania and New Jersey, divorce can be granted on grounds of separation with no prospect of reconciliation. Currently, in New Jersey, the separation must be for a period of 18 months, and in Pennsylvania, two years. In each case, the allegation of separation substitutes for fault allegations, such as adultery, cruelty, etc. Also, currently in both states, divorce can be granted by consent of the parties on grounds of "irreconcilable difference/irretrievably broken" which allows a divorce to be granted much more quickly.

How is alimony and property division determined?
Alimony and Equitable Distribution (division of marital property) are separate issues and are determined by different methods.

Equitable Distribution is the fair division of jointly owned property that has accumulated during the marriage. Generally, all property acquired by the parties becomes part of the marital estate and is subject to division. The property considered in the marital estate may also include each party's pension, in addition to real estate, savings accounts, and other personal property. However, and gifts or inheritances given specifically to one party may be excluded from distribution, as long as the property has been kept separate from the rest of the marital estate.

In New Jersey, all the property accumulated between the date of the marriage to the date the divorce complaint is filed is considered part of the marital estate. In Pennsylvania, the relevant period of time is from the date of marriage to the date of separation.

The parties may reach an agreement between themselves as to how they wish to divide their joint property and the courts will generally accept that agreement and issue a consent order. Failing that, the court will consider any of a relatively large number of factors in reaching a distribution plan that the court finds is equitable, that is, that acknowledges each party's relative expectations from and contributions to the marriage, including contributions other than financial. Generally, each party is entitled to receive an equitable share of the marital property.

Alimony, on the other hand, is not given as an automatic right. Alimony can be agreed to between the parties and entered as a consent order. The court could also enter an order for alimony, based against of any of a large number of considerations, with an eye toward meeting the needs, relative resources and abilities of the parties. Alimony can be either permanent or temporary. The court may also award alimony pendente lite, which is a form of support that lasts for as long as the divorce case remains in litigation, and can end when the divorce is finalized, or can be converted to alimony.

What about child custody and support?
Because of federal efforts to standardize child support and custody, both New Jersey and Pennsylvania are similar in their treatments.

In the matter of custody, the courts generally award joint legally custody to both parties, and primary physical custody to one party. On occasion, if the child is young and the parties live near one another, joint physical custody may be awarded. The courts use the "best interest of the child" standard in determining custody, and may rely on factors as basic as determining which party has been the main care giver to obtaining reports from psychological experts and home evaluations (in the case of highly contested cases). The determination is understandably a subjective one, but a wealth of precedential case law exists to give the courts guidance. Either party can petition the court to modify a custody award should circumstances between the parties change.

Support is generally a less subjective matter, and is usually calculated using guidelines and formulas contained in each state's court rules. The parties' net incomes are added together into an amount of total income available, and a basic amount of support due the child is determined from tables developed by the state. The amount of support due from the non-custodial party is generally in proportion that that party's percentage share of total income available. Deviations from the basic support order can be made to account for unusual medical or educational needs, or other unusual needs of the child. As with custody, either party can petition the court to modify a support order upon a showing of changed circumstances.

How can my same-sex partner and I protect our relationship legally?
Prior to 2013, neither New Jersey nor Pennsylvania recognized same-sex marriages. However, because of recent court rulings, New Jersey began recognizing same-sex marriages on October 21, 2013, and Pennsylvania followed suit on May 20, 2014. These changes in the law put same-sex couples on the same level legally as opposite sex couples, with all the same rights, responsibilities and obligations granted under each state's laws. Furthermore, as a result of the U.S. Supreme Court's decision in U.S. v. Windsor on June 26, 2013, the federal government also extends all the benefits of marriage to same-sex couples married and living in PA and NJ.

Can my partner and I adopt children?
Yes. Both New Jersey and Pennsylvania permit second-parent adoptions. The complexity of the adoption depends on whether there is another living parent involved, whether that parent consents to adoption, the age of the child, and several other factors.



The legal discussions presented on this website are for informational purposes only,
and are not intended to be used as legal advice for your particular situation.


All original content 2014 Kristine W. Holt