New York does not allow the creation of common law marriages within its state. However, if you have lived in another state that recognizes common law marriages and established a common law marriage there, when you move to New York after, New York will recognize the common law marriage you established in another state under the full faith and credit clause of the Constitution.
A common law marriage is a marriage that is established without a marriage license or an official ceremony, simply by living together and holding each other out in the public as husband and wife. In determining whether the couple established a common law marriage, the court will look into their intention. Although requirements vary from state to state, the usual elements of a common law marriage are: (a) you and your partner agree to be married; (b) you and your partner have held yourselves out to other people as spouses; (c) neither of you are legally married to someone else; and (d) you and your partner have lived together. New York courts will look into these elements to determine whether a common law marriage was established in that state that can be recognized under New York law. There is no time requirement on how long the couple has lived together before the couple can be considered to be in a common law marriage. The courts will look mostly into the intention of the couple.
Examples of proof that you hold yourselves out as husband and wife are the following, to name a few: (a) naming each other as beneficiaries in your insurance policies; (b) maintaining a joint account; (c) wearing a wedding ring; (d) receiving invitations as “Mr. and Mrs.”; (e) being called by the family of your partner as “daughter-in-law” or “sister-in-law” in letters, postcards, and text messages.
The following states currently recognize common law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and District of Columbia.
Pennsylvania, Ohio, Idaho, Georgia, Florida, and Alabama, on the other hand, used to recognize common law marriages. If you established your common law marriage at a time when these states still recognized it, that common law marriage will still be considered valid.
New York will recognize common law marriages validly established in these states under the full faith and credit clause of the Constitution. This clause states that, ‘Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.”
A common law marriage gives the partners most, if not all, rights of legally married spouses. They can inherit from each other. Properties acquired during the marriage are presumed to be conjugal. A common law wife can receive spousal or widow’s benefits from Social Security. And if the couple wants to terminate the common-law marriage, they need to file for divorce to divide up their assets and liabilities. These rights are not available to domestic partners. Although New York recognizes registered domestic partnerships, the rights of a domestic partner are not on the same level as a married couple.
Proving the existence of a common law marriage in New York can be difficult because you need to prove another state’s laws and present enough documentary evidence that you held each other out as husband and wife. You will need the assistance of expert counsel in this matter. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].