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Common Law Marriage

New York Common Law Marriage

What Is Common-Law Marriage in New York?

Common-law (or informal) marriage is the union of two persons that live together and portray themselves as a married couple, despite the fact that they do not have a marriage permit or have formally gone through a conventional marriage ceremony in New York. There are a number of states that recognize common-law marriages. They include Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Texas, and Utah. Couples who want to save money or avoid the formalities of a traditional wedding can opt for a common-law marriage. There are also a number of marital rights and privileges that come with common-law marriages. They include:

  • Alimony and property division on relationship termination
  • Child custody rights upon termination of the relationship (where the couple had a child during the marriage)
  • Healthcare benefits
  • Hospital visitation rights
  • The right to inherit property
  • The right to make certain medical-related decisions on behalf of one’s spouse
  • The right to visit one’s spouse in prison or jail
  • Insurance rights

Although a common-law marriage is considered an alternative to conventional marriage, there are certain disadvantages that come with them. Some of the disadvantages of a common-law marriage include:

  • They are usually difficult to prove, particularly where the spouse is deceased, and no legal documents exist as evidence of the existence of the relationship)
  • Where there is a divorce, the burden of proof falls on contesting party
  • Possibility of losing the right to survivorship

Couples that seek to carry out a common-law marriage must meet the state’s requirements of the state. These requirements usually include being of legal age, intention to marry, and cohabitation for a particular period of time.

Marriage in New York

In 2019, the marriage rate in New York was at 7.2 marriages per 1,000 residents and a divorce rate recorded at 2.9 per 1,000 married couples. Over 45% of the state’s population is married. A survey of the population aged 15 and older revealed that 36% of the females were married vs. 43% of men in New York City. 13% of the female demographic were either separated or divorced, compared to 9% for men.

Does New York Recognize Common-Law Marriage?

New York does not permit common-law marriages. Between 1908 to 1993, common-law marriages were permitted in the state. In 1933, they were no longer permitted in the state. However, where common-law marriage is contracted in another state, it will be recognized if it is valid in New York, in accordance with the U.S. constitution’s Full Faith and Credit Clause. This is where the marriage is not prohibited under New York’s positive law or natural law. Examples of prohibited marriages include incest, polygamy, and marriages that are offensive to public morality.

While common-law marriages are not permitted in New York, it still permits other types of unions that exist outside of a formal marriage. This includes domestic partnership and cohabitation agreements. New York also permits divorce proceedings for couples with common-law marriages that originate from states where the union is legal.

What is a Domestic Partnership in New York?

A domestic partnership in New York is a legal relationship for couples that have a closed and committed personal relationship allowed under the laws of the state. They extend the rights, protections, obligations, and benefits enjoyed by persons in marriages. Domestic partnerships in New York also include including lesbian, gay, and other non-traditional couples. For a domestic partnership in New York, it must meet the requirements provided by the New York Consolidated Laws PBH § 2961 and New York City Administrative Code § 3-241. This includes:

  • The couple must have a close and committed personal relationship
  • They must not be related by blood
  • They must have been living together continuously for at least six months
  • They must both be residents of the city or county of registration
  • They must be older than 18 years
  • Neither of them must be married
  • Neither of them currently be in a domestic partnership or have been in another domestic partnership within the past six months

Where a couple meets the requirement, they are required to register with the city or county clerk of residence. For New York City residents, they can fill out the Domestic Partner Application Form and contact any of the New York City Clerk’s offices.

There are various benefits of domestic partnerships similar to marriages in New York. However, legally married couples have more rights and benefits under New York State law than domestic partners. This includes child custody as visitation is not granted to the partner who is the non-biological parent. There are also property rights under the division of property laws that are applicable to married couples only. Some rights and obligations domestic partners have include:

  • The right to file taxes jointly
  • The right to be informed of medical care and make medical decisions on behalf of a partner
  • The right to seek child custody if the relationship ends.
  • The right to seek spousal support if the relationship ends
  • The right to inherit property or assets if one partner dies intestate
  • Obligation to divide property and assets if the relationship ends

What is a Cohabitation Agreement in New York?

Cohabitation essentially implies that two parties live together as husband and wife. In New York, a cohabitation agreement is a legally binding agreement between a couple who live together. It spells out the obligation of each spouse and establishes rules for asset division in the event of a divorce. Cohabitation agreements are a popular option for romantic couples who own property, invest together, or have joint bank accounts.

What are the Requirements for a Common-Law Marriage in New York?

Common-law marriages were legal in New York before January 1, 1902. Then they were prohibited from January 1, 1902, to January 1, 1908. Due to a legislative error, common-law marriages were once again made legal in New York from January 1, 1908, to April 29, 1933, when they were finally outlawed. While common-law marriages are not allowed in New York, they are recognized where the marriage was done in a state that permits them. Also, New York permits other non-marital relationships like domestic partnerships and cohabitation agreements. Persons that meet the requirements of the state can register these non-marital relationships. For example, with regards to domestic partnerships, both persons must:

  • Be in a close and committed personal relationship
  • Be over 18 years old
  • Be cohabiting in a city or county in the state for over six months
  • Be not be married or be in another domestic relationship
  • Not be related by blood

Intending domestic partners can submit an application for the relationship at the office of the city or county clerk of residence.

How many years do you have to Live Together for Common-Law Marriage in New York?

Notwithstanding how long a couple have lived together, common-law marriages are not permitted in the state of New York. Hence, couples that have been living together for a long period of time can only secure certain marital rights through a cohabitation agreement or domestic partnership. It should be stated that these non-marital relationships are only valid in New York. This is unless a state where the couple intends to move to recognize such relationships.

What Does it Mean to be Legally Free to Marry in New York?

To be legally free to marry in New York, a person must meet the requirements set by the state. Since marriage is essentially a civil contract, these requirements are similar to the requirements for entering into a binding contract. For instance, the person must be over 18 years old and have the capacity to enter into a contract. A person cannot marry a close relative. The gender of a couple is not relevant. New York started permitting same-sex marriages to be contracted in the state on July 24, 2011, after the signing of the freedom to marry bill into law.

What is Intent to Marry in New York?

Intent to marry in New York is the desire to get married in the state. Under New York Consolidated Laws DOM Article 3, Section 13, this intention is made known by the couple by obtaining a marriage license in person from the town or city clerk. The license must be signed by the couple in the presence of the clerk. The license usually costs $35-40. It is valid for 60 days and can be used in any city or town in New York.

What is an Informal Marriage in New York?

A common-law marriage is referred to as an informal marriage in Texas. While New York does not permit informal marriages formed within its borders, it recognizes the validity of common-law marriages formed in other states that permit such unions. If a couple from Texas with an informal marriage relocates to New York, their relationship is recognized and treated as such in New York.

How Do You Prove Common-Law Marriage in New York?

There are several instances that can warrant a person proving the existence of their common-law marriage with their partner. This includes inheriting property, claiming insurance or other benefits, or getting a divorce. To prove the existence of a common-law marriage, it must be proven that both parties agreed to the marriage. The best way to prove this is by providing a written agreement duly signed by the couple. This agreement must show their willingness to begin a civil union.

Where there is no agreement, a person can provide testimonies and supporting documents to show the existence of the marriage. Some of these supporting documents include:

  • Title deeds showing jointly held or shared ownership of residential property
  • Joint leases or rental agreements
  • Employment records listing your common-law spouse as an immediate family member
  • Bills for shared utility accounts like telephone, electricity, gas, joint utility accounts
  • Important documents that show that the couple have the same address, such as driver’s licenses, insurance policies, identification documents
  • Birth certificates naming the couple as the parents of the child
  • Loan documents, mortgages, and promissory notes that show joint financial obligations of the couple
  • Mails addressed to both spouses as a couple
  • Documents that show one spouse assumed the surname of the common-law spouse

They can also provide testimony from witnesses stating that the couples refer to each other as husband and wife.

Third-party websites may provide a convenient solution to obtaining marriage-related public records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

  • The full name of both spouses (include first, middle, and last names)
  • The date the marriage occurred (month, date, and year)
  • The location where the marriage occurred (city and county)

How Do You Prove Common-Law Marriage in New York After Death?

Where a spouse dies, a widowed partner can establish a common-law marriage by providing supporting documentation. The widowed partner may also provide a statement acknowledging the existence of the marriage, with two relatives of the deceased providing supporting testimony. This alternative, however, is only available for common-law marriages formed outside of New York. The couple must have met the criteria for a valid common-law marriage in the state where the union occurred for the marriage to be recognized in New York.

Do Common-law Marriages Require a Divorce?

A divorce is required for the dissolution of any common-law marriage created in states that permit this type of union. A common-law marriage divorce must be done in compliance with the laws and regulations of New York. This is for the purpose of issues like property or asset division, child custody, or spousal support.

Does a Common-Law Wife Have Rights in New York?

New York protects the marital rights and benefits of couples who entered into a common-law marriage in a state where such unions are legal. Common-law spouses may be able to establish many of the same rights as married couples, including property distribution rights in the event of death or divorce.

Can a Common-Law Wife Collect Social Security in New York?

Where a marriage was held in another state with laws that support common-law marriage, the spouses can collect Social Security benefits. They must meet the validity requirement and provide proof by submitting a Statement of Marital Relationship Form and an additional statement from a blood relationship, acknowledging the marriage. Information required from the couple includes:

  • The date when they began living together as a couple
  • The city/town and state where the union happened
  • The length of time and places the couple have lived together
  • If they have any children
  • Their former names (if changed)
  • A list of relatives, neighbors, or employers who are aware of the relationship

Are Common-Law Wives Entitled to Half in New York?

Common-law wives have the same marital rights and entitlements as wives in a ceremonial marriage in the event of divorce. In New York, properties are divided using the equitable distribution system, except where the couple signed a prenuptial agreement that provides contrarily. This means that a common-law wife is not automatically entitled to a 50-50 split. This distribution is only done for properties obtained during the duration of the marriage. Separate property owned or received through inheritance or gift before the marriage is not distributed. New York Dom. Rel. § 236 (B)(5) provides that the following be considered in the division process:

  • Each spouse’s age and health status
  • Their individual income and property at marriage and when divorce was filed
  • The length of the marriage
  • The need of the spouse with custody to reside in the family home and use or own its effects
  • The pension, health insurance, and inheritance rights either spouse will lose as a result of the divorce, valued as of the date of the divorce
  • The value of the pension, healthcare insurance, and inheritance rights that either spouse will lose as a result of the divorce on the date of the divorce.
  • Whether spousal maintenance has been granted by the court (alimony)
  • Whether either partner has an equal and fair claim to marital assets to which that partner does not have a title based on that spouse’s contribution of labor, money, or efforts as a spouse, parent, wage earner, or homemaker, including contributions to the earning potential of the other spouse
  • All marital properties have a liquid or non-liquid character.
  • Each spouse’s likely future financial situation
  • Where the marital asset includes an element or interest in a business, corporation, or profession, the difficulty of valuing that interest, and whether it would be desirable for that interest to be kept intact, free of claims or interference from the other spouse.
  • The tax implications for each spouse
  • Whether either spouse has squandered marital assets.
  • Whether either spouse has transferred or encumbered marital property in anticipation of divorce without just and proper consideration; and
  • Any other factor the court expressly finds to be a just and appropriate consideration.

How Do You Get a Common-Law Marriage Affidavit in New York?

Marriage affidavits are only available in the states that permit common-law marriages. Since New York does not permit common-law marriages, they cannot be obtained from the state. While the requirements for common-law marriages vary by state, most states follow the same general guidelines for what should be included in an affidavit:

  • The state where the partners have decided to marry must be specified in the affidavit
  • The affidavit must state that both partners are of legal marriageable age
  • The date the decision was made must be included in the affidavit
  • The affidavit must include information about any other license or common-law marriage, including wedding and termination dates

When Did Common-Law Marriage End in New York?

After a series of permission and abolition, the state of New York finally abolished common-law marriages in 1933. Therefore, irrespective of how long a couple have lived together and that they call themselves husband and wife, they have not contracted a common-law marriage in New York. The state, however, recognizes a common-law marriage entered into a jurisdiction that permits them. It is thus possible that if New York residents temporarily live in a jurisdiction where common-law marriages are permitted, the marriage will be recognized in New York. This happened in cases like Carpenter v Carpenter, Tornese v Tornese, and Cross v Cross.

What is Considered Common-law Marriage in New York?

New York does not permit common-law marriages but recognizes common-law marriages contracted in states where they are permitted. Therefore, what is considered a recognizable common-law marriage in New York is based on the requirements set out by the jurisdiction where the marriage was contracted. That is, where common-law marriages are permitted in that state.

Also, common-law marriages are not recorded in the New York marriage records. In New York, marriage is defined by the Domestic Relations Law as any “ a civil contract, to which the consent of parties capable in the law of making a contract is essential.” Marriages are followed by the issuance of a “license and solemnization.” An individual must have the capacity to enter a contract. Then the individual and their partner must obtain a license from a town or city clerk before they can be legally married.

Is a Domestic Partnership the Same as a Common-law Marriage?

A domestic partnership is not the same as a common-law marriage, despite the fact that they are both types of civil unions. Persons who form a domestic partnership in New York receive the same benefits, marital rights, protections, responsibilities, duties, and obligations as married couples. However, this relationship is only valid within the state’s borders. Domestic partners that visit other states or sojourn there are considered single and unmarried.

Does the Federal Government Recognize New York Common-Law Marriages?

There are only nine states and the District of Columbia that recognizes common-law marriages in the U.S. These states include Colorado, Kansas, Iowa, Montana, New Hampshire, South Carolina, Texas, Utah, and Rhode Island. States like Alabama, Florida, Indiana, Pennsylvania, Ohio, and South Carolina recognize common-law marriages that happen before a particular date. Each state outlines its rules concerning common-law marriages. Some states have sui generis laws, others address them under public policy, natural, or positive law to determine validity.

Only common-law marriages that occur in states where they are permitted or considered legal are recognized by the federal government. That is, common-law marriages that occurred in states mentioned above. There are benefits that accrue from common-law marriages within these states, including federal income tax and immigration benefits like securing permanent residency.

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