We Were Together Long Before We Could Marry. Does Our History Count?

This is one of the most important questions a same-sex couple can ask, and it often gets asked hesitantly, as though it might not really count: we'd already been together eleven years by the time we could actually get married.

It counts. Here's the honest picture.

New Jersey's Timeline, and Why It Created This Problem

The dates are worth having in front of you, because they're the dates the law will look at:

• July 2004: the Domestic Partnership Act takes effect.
• February 2007: civil unions become available in New Jersey.
• October 2013: same-sex marriage becomes legal in New Jersey, following Garden State Equality v. Dow.
• June 2015: Obergefell v. Hodges makes marriage equality national.

Now compare that to when your relationship actually started. For a couple who moved in together in 1998, bought a house in 2003, and married in 2014, the law is looking at roughly sixteen years of shared life and a marriage certificate that says one year old at separation.

The legal framework was built for couples who could marry whenever they chose to. It was never designed for people who were legally barred from marrying and then got a certificate the moment one became available. That mismatch is the whole issue.

What the Law Tends to Do With It

In New Jersey, property acquired during the marriage is generally marital property subject to equitable distribution. Property one spouse owned before the marriage is generally exempt.

Applied literally, that means:

Premarital property stays separate. The house one of you bought in 2003 and held in your own name, the retirement account funded through the 2000s, the business started in 2006. Read strictly, those belong to the person whose name is on them, even though you built that life jointly.

The length of the marriage may be measured from the certificate. Duration of the marriage is a statutory factor in both equitable distribution and alimony. A "one-year marriage" and a "sixteen-year relationship" produce very different outcomes on support, and the difference can run to hundreds of thousands of dollars over time.

I want to be straightforward about where this stands, because you deserve a real answer rather than a reassuring one: there is no settled New Jersey rule directing a court to count the years before your marriage or civil union. This is an open question. How any particular judge would approach it depends on the facts in front of them and how the issue is argued, and I can't tell you how it would come out. Nobody honestly can.

Which is to say: if this ends up in a courtroom, an unsettled question gets answered by someone else, and a significant amount of money may ride on the answer.

Why Mediation Is Different Here

This is the situation where mediation offers something a courtroom structurally cannot.

A judge is applying a legal framework. That framework may or may not stretch to accommodate the years before your certificate, and neither of you gets to decide whether it does.

In mediation, you two decide. You can agree that your relationship began in 1998, because it did, and build a settlement on that premise. You can treat the house purchased in 2003 as jointly built even though only one name is on the deed, because you both know how it was actually paid for. You can calculate support against the length of the partnership rather than the length of the paperwork.

None of that requires a court to first resolve a difficult legal question. It requires the two of you to agree, and then it goes into a Memorandum of Understanding that your attorneys turn into a binding Marital Settlement Agreement.

That's self-determination, and it's the entire point of the process. For couples in your position it isn't a soft benefit. It's the difference between honoring twenty years and honoring five.

The Practical Work

In a mediation like this, we build the actual timeline. Not the certificate, the timeline: when you moved in together, when you combined finances, when you bought what, who paid for what, whose career was deferred for whose, who stayed home when a child arrived. Bank records, deeds, closing documents. The story with paper behind it.

That document does two things. It gives you both a shared factual basis for a fair agreement, and if the mediation doesn't finish and you end up in court after all, you've already assembled the record you'd need to argue the point.

Know Which Status You Actually Have

The difference here is not small, and it's easy to be unclear about which status you're actually holding.

Civil union. Partners in a New Jersey civil union have the same rights and obligations as married spouses under state law. Dissolution follows the same process as divorce, including alimony and equitable distribution. If you entered a civil union in 2007 and never converted it to a marriage, that union is still legally live and still has to be formally dissolved.

Domestic partnership. Substantially fewer rights. Domestic partners are generally not entitled to alimony, and a court's authority on property is largely limited to distributing jointly held assets, meaning things titled in both names. There is no broad equitable distribution of everything acquired during the partnership.

Since 2007, new domestic partnerships in New Jersey have been limited to couples where both partners are 62 or older. But partnerships registered by younger same-sex couples between 2004 and 2007 remain valid, which means some couples are sitting on a status they registered twenty years ago and haven't thought about since.

If you have a partnership, a union, and a marriage layered on top of one another, sorting out which ones are still in effect is the first thing to do, before any conversation about property or support.

If You Have Children

Where one of you is the biological or adoptive parent and the other has been a parent in every way that matters, the legal picture depends on whether parentage was ever formally established.

New Jersey recognizes psychological parent status, and there is a presumption of parentage for a child born during a marriage or civil union. But the strongest protection, by a wide margin, is a second-parent or confirmatory adoption. A couple relying on a presumption or on psychological parent status has something that may need to be established; a couple with an adoption order has a court judgment other states are obliged to recognize. That distinction can matter a great deal.

In mediation we make sure the parenting plan reflects the family you actually are, with real schedules, real decision-making authority, and real holidays. But where parentage was never formally established, that is a question to take to your own attorney. I'll tell you plainly if I think you need to, and I'd rather tell you early than have it surface at the end.

The Short Version

The certificate date is where the law tends to start. It is not where your marriage started, and you know that better than anyone.

Mediation is the room where the difference between those two things can be put on the table and dealt with honestly, by the two people who were actually there.

If you want to talk it through, the first thirty minutes are free.

This article is general information about New Jersey law and is not legal advice. The law regarding pre-marriage-equality relationships is unsettled and continues to develop. Mediation is not a substitute for independent legal counsel, and each party is encouraged to have a settlement agreement reviewed by their own attorney before signing. Questions of parentage in particular warrant independent legal advice. Every case turns on its own facts.