Does New York Allow Common Law Marriage?
New York has long taken the position that there is no such thing as a common law marriage. This is a position consistent with the historically religious connotation of marriage and its associating "ceremony". Evidence for this can be found in the State’s Domestic Relations Law. DRL §10 provides that within the state, "a marriage can only be created by a license issued by the town, county or city clerk’s office and solemnized" and DRL § 11 gives a long list of people authorized to solemnize marriages. The policy behind this has its roots in the efforts of the State to keep stricter union with the church, since Protestant, and particularly Catholic, sects frown upon co-habitation without the sanctity of marriage. It is also an issue of ensuring that the financial instrumentality of the State is not abused by the government’s refusal to enforce a contract between two people who are not married, i.e. in the partition of property upon dissolution or death. As stated above, the position recently reiterated by the Appellate Division of the Fourth Department several months ago, any marriage entered into after 1933 and prior to the ability to marry on New York Indian reservations must have been solemnized properly. Furthermore, a contract to marry is not enforceable. Thus, in the State’s view, the idea that a person is married is a delusion – which probably makes the spouses party to another crime (Maintaining a Dwelling of a Dangerous Character, Penal Law §240 . 36) and unlikely to end in a fair result in the divorce court. Nevertheless, many reside within this state, and are under the impression, that they are married due to their common law marriage in their prior state or country. See e.g., Adrienne O’Connor v. Karim Elmazi , 2013 NY Slip Op 05660, 114476/12, Ct. of Claims 2013 NY Slip Op 05660 Decided on September 6, 2013. Unlike New York, several of our neighboring states recognize the validity of a common law marriage. Connecticut, Pennsylvania and Vermont have enacted laws recognizing common law marriage. Massachusetts recognizes it via the holding in In re Estate of Jose Berghs, 468 Mass. 602, 13 N.E.3d 628 (2014). New Jersey, by its statutes and case law, recognizes common law marriage as well. In addition, under DRL § 11(2) it is possible to marry on Indian Land with a license issued by the Federal Government rather than the State. States, such as New York, must recognize the legitimacy of these unions because it has no power over Indian reservations. These situations may be problematic when it comes to equitable distribution in a divorce. See e.g. Sheehan v. Sheehan, 583 N.Y.S.2d 551, 179 A.D.2d 688 (1992). Accordingly, it should be the policy of the State to create an exception to the invalidating DRL provision that will encompass these people so that they are subject to all of the benefits of marriage, so that a fair result can be had in an action for divorce.
The Legal Ramifications If You Move to New York
Though New York does not recognize common law marriages formed within the state generally, it does recognize such relationships entered into in other states. In the Finance v. Harris decision, the Court of Appeals established the policy in New York to give full faith and credit to laws, marriages included, legally entered into in other states. The Court held this definition excepts only marriages, no matter how created, that violate strong public policy on an issue. Establishment of a common law marriage in New York, however, depends on various factors.
The first factor for consideration is where the alleged spouses were actually married. The person asserting the validity of the common law marriage bears the burden of proof if there is a compelled separation of the couple. If residence of both parties exists in a jurisdiction that allows common law marriage, then the couple may create a legal bond recognized as a marriage in that jurisdiction. If the residing jurisdiction does not recognize the legitimacy of the common law marriage, then another state in which one of the parties does reside must be examined. If the state in which the couple established a common law marriage recognizes the citizens as legally bonded, then the proper inquiry is completed.
A person asserting the existence of a common law marriage must further demonstrate that the relationship put forth satisfies the requirements of the other state. A common law marriage in another state that does not use the "implied contract" theory for establishing marital status in the state where the common law marriage is asserted lacks validity unless necessary proof exists. Based on the requirements of that state, the person is last required to introduce demonstrative evidence to convince the court that the parties had and still have the same marital status.
In the end, regardless of the exact situation, a court in New York will generally have no problem extending recognition of the couple’s relationship if the marriage fully satisfies all requirements necessary in another state.
Options Other than Common Law Marriage to Protect Yourself in New York
In lieu of common law marriage, which is not available in New York, the State recognizes several legal arrangements. Perhaps the most common alternative is a formal marriage, which can be obtained through the licensing process, for which no residency requirement exists. Parties may, however, wish to avoid legal formalities associated with the marriage process. In such cases, the parties should enter into a written contract with each other that clearly lays out their intentions. Such written contracts provide limited benefits to the parties. For example, such contracts may affect the presumption of paternity and enhance inheritance rights, which are otherwise not available under common law marriage laws.
In New York, as of this writing, there are no statutory domestic partnership or civil union statutes. However, the State now recognizes the existence of domestic partnerships and civil unions for same-sex couples under New York law. These types of relationships provide certain marital rights to registered partners in several areas, such as spousal benefits, social security benefits and tax benefits; they also provide custodial, estate administration and inheritance rights if one partner predeceases the other.
Domestic Partnership Issued by the City of New York: The City of New York allows both same-sex and heterosexual couples to enter into a "Certificate of Domestic Partnership." The requirements to register for a Certificate of Domestic Partnership are the following: If both parties meet the qualifications above, the partners must go to the City Clerk’s office to obtain a domestic partnership license. If the partners agree to get married later, the domestic partnership certificate can be upgraded to a marriage license.
Domestic Partnership Issued by the State of New York: If a couple lives outside of the City of New York, that couple can file a Certificate of Domestic Partnership with the Secretary of State. Once the Certificate is signed by the Secretary of State, a domestic partnership is created. The parties can legally refer to each other as "partner," along with any other title. As with the Certificate of Domestic Partnership issued by the City of New York, the State of New York-approved certificate provides for certain legal rights, including, but not limited to, health care proxy, insurance benefits, survivorship and burial decisions.
Civil Unions Based on Vermont Law: In addition, Civil Unions were created in Vermont. Although not yet recognized in New York, a Civil Union is designed for same sex couples where the partners are joined and share all of the legal rights and benefits of a marriage. One benefit includes the right for a partner to gain visitation rights to see their partner in a hospital, limits on partner’s power of attorney, rights to inheritance and rights to pensions. As Vermont Civil Unions are not recognized in New York, those who enter into such a union still run the risk of disputes relating to property if the partners were to separate, die or otherwise encounter problems.
Please note that as laws change frequently, you should contact us for specific up-to-date advice.
How to Ensure Your Rights Without a Common Law Marriage
Despite the fact that the State of New York does not recognize common law marriages, this does not mean there are no legal protections afforded to couples who live together, act like spouses, and care for one another. With a social and legal climate shifting toward acceptance of same-sex couples and people in non-traditional relationships, there have been many new ways for people to attain numerous rights previously available only to married couples.
One option available to unmarried couples is a "cohabitation agreement," which is essentially a written contract between the parties that sets forth how they intend to divide their property, support each other financially, and raise children. Cohabitation agreements do not need to have any specific legal language, but each person should get independent legal advice before signing it . A cohabitation agreement gives the parties an enforceable contract that, if violated by either party, would entitle the other to go back to the court to get an order enforcing the terms of the contract.
Other options are estate-planning documents. A will can be set up to leave property and insurance benefits to a boyfriend or girlfriend. A power of attorney and health-care proxy can be created that allows one live-in partner to make decisions on behalf of the other if he or she becomes incapacitated. Even if a couple were to marry at some point, the existence of these documents will not prevent either person from changing his or her will, health-care proxy or power of attorney, as a spousal relationship gives rise to certain additional rights that will trump anything contrary contained in those documents.
Getting Legal Help for Your Nontraditional Relationship
It is important to seek out professional legal advice if you believe you may be in a common law marriage or are involved with someone in an unconventional union. You should ask your attorney the following: – Is New York the place that "counts"? – If your attorney says yes, then you may or may not be liable for support and distribution of property can be out of the question, depending on how long the marriage lasted . – How can I challenge allegations of common law marriage? – How should I pursue alimony (or not pursue it) against a spouse? – Can I resolve issues with the private mediation system and protect myself from a financial punch by use of a cohabitation agreement? Any time family structure becomes complicated, it is good to probe specific legalities with your attorney. In fact, it is essential to be informed of all possible ramifications that can – sometimes unexpectedly – come into play later down the road.
