What is Common Law?
May 18, 2013
What is a Common Law Marriage?
May 23, 2013
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Is Common Law Legal in NJ?
Prenuptial Agreement and Rings

Prenuptial Agreement

New Jersey is a common law state. In the United States there are two basic legal systems which govern marital property: common law and community property. The community property system is founded on Spanish law and is usually practiced in the western and south western portions of the United States. Alaska offers couples the right to opt in for community property. Common law, on the other hand has its foundation in English law and it is what governs most of the states including New Jersey.

Ownership Rights

In states that operate by community law whatever an individual brings into the marriage or receives while married remains their property. However, anything acquired as a couple is automatically co-owned by both individuals no matter who actually earned it or whose name ends up on the title. There are times when inheritance cash gets mixed in with an account that the couple owns jointly which can end up deeming it as community property by the Court. In a state, like New Jersey which operates under common law whoever name is on the ownership document, title or registration owns the item. But under common law your spouse has a legal right to claim a portion of your property in the event of a divorce.  Most of the time the higher wage earner of the couple gets 2/3 and the other spouse receives 1/3 of an item that specifically belongs to one mate. There are actually 15 different types of circumstances which outline whether or not property owned by one party can be awarded to the other. Marital property states will look at all of the assets that both parties have obtained whether through earnings, gifts or inheritance, and then distribute them back out evenly between the two. There are no types of preset rules as it is a very individual decision by the courts which is determined largely by the length of the union, who needs it, and what is the fairest option.

What about Real Estate?

According to NJ family law unless the parties signed a prenuptial or post-nuptial agreement which splits things up a certain way, the state laws govern how things are split up except when it comes to real estate. In a community property state such as New Jersey, whatever is brought into the marriage will remain yours. Whatever is acquired during the marriage is co-owned by both of the parties. In a community property state each party would own half and in the event of a divorce each would receive half of its worth.

Are there exemptions?

Pensions are one of the areas which are an exception to community property. Most of the time both private and military pensions are community property. At the very minimum the amount that was paid into the pension while you were married is community property. Federal pensions on the other hand are considered individual property rather than community property according to federal law. Couples can also overrule many of the marital property laws by signing prenuptial or post-nuptial agreements which state their preferences. Sometimes couples who are in second or third marriages will choose to keep some of their assets separate along with their incomes just for purposes of planning their estate. A family law attorney can pretty much help couples divide up things any way that they desire as long as there is a certain element of “legal bargaining power” kept in the agreement. Otherwise it may not make it through litigation. But as long as the two spouses can agree and the outcome is fair they can divide things up how they want.

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