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 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.  It remains to be seen how the Court intends to treat couples who previously conducted themselves under the presumption of common-law marriage.

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.  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," 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 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 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 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 to which party has been the main care giver to reports from psychological experts and home evaluations (in the case of highly contested cases).  The determination is understandable 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 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?

Neither New Jersey nor Pennsylvania recognizes same-sex marriages.  Pennsylvania has passed a "defense or marriage" statute declaring that such marriages are void.  On the other hand, the New Jersey Supreme Court ruled in October 2006 that same-sex couples are entitled to the same rights and privileges as those enjoyed by opposite-sex married couples.  The Court directed the legislature to determine whether marriage would be extended to same-sex couples, or whether some "separate but equal" scheme should be established.  The legislature subsequently enacted legislation establishing the Civil Union, granting all the rights of marriage to same-sex couples, without the name.

Neverthelss, until such unions are universally accepted, it remains prudent to have basic Wills, Living Wills and Powers of Attorney, reciprocal to each party, drafted and executed.  Also, it is helpful to have jointly owned property titled, wherever possible, jointly with right of survivorship.  This includes not only real property, but bank accounts and other financial accounts.  Insurance policies should name each other as beneficiaries.  Additionally, a domestic partnership agreement (identical to a pre-nuptial agreement) that covers ownership of joint property generally (and its division in the case of separation) may be desired.  Taking these steps can prevent interference from third parties as to each partner's rights to property, hospital visitation, medical decisions, and a myriad of other rights that married couple take for granted.  Unfortunately, most tax laws will still treat the couple as legal strangers.

In the event of separation, each party has a right to partition of the jointly owned property.  Partition is the process of dividing jointly owned property, either by permitting one party to buy the other party's share, or by ordering the sale of the property and dividing the proceeds. In Pennsylvania, such partition actions technically proceed on contract or quasi-contract grounds, although courts generally recognize the domestic nature of the parties' relationship and proceed in a manner akin to family matters.  And when children are the subject of a separation, bona fide family court proceedings are brought into play.   

Can my partner and I adopt children?

Yes.  Both New Jersey and Pennsylvania now 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.