Common Law Marriage New York: Divorce Laws and Alimony

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By Divorce & Finance

One thing to keep in mind is that several couples try to achieve Common law marriage in New York, but most fail.

Couple in new york married by common law

Common law marriage in the United States has existed since the year 1877. To this day, only a handful of states provide common-law marriages.

Common-law marriage is a concept through which a couple living together for a certain amount of time is considered married according to their family, friends, and community.

To add, being married by common law does not mean that you have to go through a formal wedding ceremony or receive a marriage license. A valid common law marriage usually confers the advantages and obligations of a legal marriage.

Most states set standard requirements for common law marriages, which are:

  • Both partners must be living together, and the amount of time required differs from one state to another.
  • Both partners must be above 18 years old, must be fair-minded, and must not be previously married to another person. In other words, the couple must have the capacity to marry.
  • The couple must intend to be married.
  • Both partners must hold themselves as a married couple in front of their family, friends, and community.

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Does New York Recognize Common Law Marriage?

New York is one of the states that does not recognize common law marriage.

Unlike a few other states, the New York state does not allow you to receive marital rights and responsibilities by simply living together with your partner for a specific period. If such a relationship is established in New York, then the common law in New York states that you need no legal action to end it.

However, if the legal demands of states through which common law marriage is provided are met, then your common law marriage in New York is recognized provided it took place in those other states.

Subsequently, to end a common law marriage in NY, the couple must take legal actions in conformity with the ceremonial and licensing regulations of the other states (i.e., the state where you got married by common law). Therefore, the New York State common law marriage only exists if you got married by common law in another state.

Following Obergefell vs. Hodges in 2015, New York recognized a Domestic Partnership as a lawful union. Through this decision, the United States Supreme Court allowed greater rights and benefits for those legally married than those registered as domestic partners.

How Is New York State Common Law Marriage Different From Other States’ Laws

Some states process common law marriage through their statutes, while others through court decisions. The nine states that still offer common-law marriages are the following: Iowa, Colorado, Montana, Kansas, Oklahoma, Texas, Rhode Island, and the District of Columbia.

It is necessary to mention that Pennsylvania allowed common-law marriages before 2005. Therefore, any couple who entered common law marriage before 2005 in Pennsylvania is still considered married.

Couple married by common law consult with lawyer for validation in new yorkTo clarify, let’s suppose that you decided to move and settle in New York after living in one of the states mentioned above or Pennsylvania. You and your spouse were married by common law and seek validation in New York to preserve your rights. Thus, you should consult an attorney to receive validation for your marriage according to the marriage laws in New York.

Keep in mind that you can get married by common law even if you don’t have the right or ability to get married to anyone while living with your other half.

Two cases of which could be:

  1. If you live with your partner and either of you gets a divorce from a former spouse.
  2. If you move in with a married person and their spouse dies during your stay with this person.

Initially, you could not marry as soon as you moved in with your partner; however, following either a divorce or death of a spouse, you gain that capacity back. As soon as your common law marriage is established, it is just as legal and irrevocable as any other valid marriage.

Your common-law marriage lasts until one partner dies or you are granted a divorce. You will have to prove your marriage in the case where your spouse dies before you both lawfully establish a common law marriage, to be able to inherit, earn insurance benefits, and obtain pension and Social Security Survivor’s benefits.

The most solid evidence partners can show to prove their intention of marriage is a written agreement between them. However, only a judge can confirm whether a common law marriage exists.

Several factors that the court usually looks into and takes into consideration before determining whether or not you are in a common marriage are the following:

  • If you and your partner live together
  • If either your or your partner uses the other partner’s last name
  • If you and your partner have signed contracts to buy cars and houses
  • If you and your partner filed for joint tax returns
  • If you and your partner refer to each other as husband and wife
  • If you and your partner have joint bank accounts
  • If you and your partner share expenses and household responsibilities
  • If you and your partner have children together and whether or not you raise them together

The courts usually apply the regulations of common law marriage when a partner dies without having written a will and the other partner claims that they shared a common-law marriage.

This usually happens when a spouse tries to inherit properties under intestate succession laws. In such cases, the court rules following the law that provides a share of the property to the spouse; nonetheless, it may not acknowledge an unmarried partner.

The existence of a common-law marriage is based on several elements. First of all, the state in which both partners live must acknowledge the validity of a common-law marriage legitimately.

Suppose you and your partner live in a state that does so. In that case, the effectiveness and legitimacy of the marriage will depend on how you and your partner view your relationship and how you act accordingly. An imperative element that helps determine the presence of a common-law marriage is the couple’s intent to do so.

However, the latter is not solely enough; you and your partner must satisfy the state’s laws and regulations concerning marriage. Also, you and your partner must hold yourselves publically as married. In other words, to form the foundation of a common-law marriage, you must prove it through not only your words but also your actions.

Divorce Laws and Spousal Support

Some states have specific measures and limitations when it comes to acknowledging a common-law marriage. Suppose you and your partner want to separate, and either of you wishes to make an allegation against the other. In that case, the applicant will have to petition the court to acknowledge the common-law marriage.

The applicant will be unlucky if it is not done before the period mandated legally by the state. Alimony in New York, also referred to as spousal support or maintenance, is a payment that one spouse gives to the less-earning spouse during or after divorce. Usually, the courts in New York offer three alimonies: temporary, rehabilitative, or permanent.

Temporary pay is paid during the divorce procedure and ends when the divorce ends. Rehabilitation is temporary after a divorce and is given if the other spouse does not have the skills or education to work and support themselves after the divorce is done. Permanent support is paid after the divorce is complete and based on the length of the marriage and the other spouse’s health.


Couple at lawyer reading the common law marriage right in new yorkEven though the state of New York does not recognize common law marriage, you can still preserve your rights by following the guidelines of an experienced lawyer.

The following are some points to keep in mind:

  • Under Family Law, a valid marriage is mandatory in New York to benefit from pension plans, social security and to deal with inheritance issues.
  • If you are moving to New York from a state that recognizes common law marriage, you must validate your union according to the marriage laws in New York.
  • New York is one of the states that recognize Domestic Partnership as a lawful union.
  • Thus, the state grants more rights to domestic partners than those who are married by common law. For instance, public corporations and private companies in New York may provide health, vision, dental insurance, sick leave, and housing benefits to domestic partners and not to common-law couples.
  • If you want to secure your rights in case of a divorce, it is recommended that you get a legal and valid marriage in New York.
  • In a legal separation, divorce laws and regulations are more straightforward regarding certain rights, child care, spousal support, and the distribution of assets in a valid marriage. Thus, getting professional help is a must to understand your rights as a common-law couple in New York.
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