Common Law Marriage: What New York Couples And Lawyers Need To Know

Man Poposing Marriage  to Woman

Common law marriage is a legal concept that recognizes a marital relationship between two individuals who have not undergone a formal ceremony or obtained a marriage license. This article provides a comprehensive overview of common law marriage, exploring its historical background, states that recognize it, requirements for its validity, dissolution procedures, and its status in New York State. Additionally, it discusses the relevance of common law marriage in prenuptial agreements and addresses common misconceptions.

I. Historical Background of Common Law Marriage:

  • Common law marriage originated from English legal traditions, where informal unions were considered valid and recognized.
  • In the United States, common law marriage was prevalent during the colonial era and served as an essential institution in frontier regions where formalities were difficult to fulfill.
  • As time progressed, many states enacted statutes to regulate and define common law marriage.

II. States Recognizing Common Law Marriage:

  1. Alabama: Requires mutual consent, capacity, and public declaration of marriage.
  2. Colorado: Requires mutual agreement, cohabitation, and holding themselves out as married.
  3. District of Columbia: Recognizes common law marriages from other jurisdictions but does not allow new ones.
  4. Georgia: Requires mutual agreement, cohabitation, and the intent to be married. No new ones since 1/1/97
  5. Idaho: Requires mutual consent, cohabitation, and public declaration. No new ones since 1/1/96
  6. Iowa: Requires mutual consent, continuous cohabitation, and public acknowledgment.
  7. Kansas: Requires mutual consent, cohabitation, and holding themselves out as married. Both must be over 18
  8. Montana: Requires mutual agreement, cohabitation, and public acknowledgment.
  9. New Hampshire: Recognizes common law marriages from other jurisdictions but does not allow new ones.
  10. Oklahoma: Requires mutual consent, cohabitation, and holding themselves out as married.
  11. Pennsylvania: Requires mutual consent, cohabitation, and a reputation of being married.
  12. Rhode Island: Recognizes common law marriages established before 01/01/1906.
  13. South Carolina: Requires mutual agreement, cohabitation, and public declaration.
  14. Texas: Requires mutual consent, cohabitation, and holding themselves out as married. Must register at county courthouse and if no longer togehter there is a rebuttable presumtion that there was no marriage
  15. Utah: Requires mutual consent, cohabitation, and an agreement to be married. Must be recorded at county courthouse and there must be a determination during the relationship or no more than 1 year after separation.

III. Requirements for a Valid Common Law Marriage:

Note that, for a marriage of any kind, each state will have requirments such as minimum age, which would have to be satisfied even in a common-law marriage. Also, based upon the US Supreme Court decisision of Obergefell v Hodges, states which allow common-law marriages must allow same sex partners the right to use common-law marriage.

  • Mutual consent: Both parties must agree to enter into a marital relationship.
  • Cohabitation: Living together as a married couple.
  • Public acknowledgment: Holding themselves out as married before the community.

IV. Legal Documentation and Common Law Marriage:

  • Unlike a traditional marriage license or certificate, states that recognize common law marriage generally do not issue specific legal documents to validate the existence of a common law marriage.
  • The validity of a common law marriage is typically determined by evaluating the evidence presented, such as joint tax returns, shared bank accounts, or testimonies from family and friends.

V. Dissolution of Common Law Marriage:

  • The dissolution process for a common law marriage is generally similar to a traditional marriage and requires a legal divorce or annulment.
  • Parties seeking to dissolve a common law marriage must go through the appropriate legal procedures, including filing for divorce, division of assets, determination of support, and child custody arrangements, if applicable.

VI. Common Law Marriage in New York State:

  • New York does not recognize common law marriages established within the state.
  • However, New York will recognize a valid common law marriage established in another jurisdiction if it meets the legal requirements of that jurisdiction.
  • To dissolve a common law marriage recognized in New York
  • State, individuals must follow the dissolution procedures applicable to traditional marriages, such as filing for divorce or pursuing an annulment.

VII. Relevance of Common Law Marriage in Prenuptial Agreements:

  • When drafting a prenuptial agreement, a previous common law marriage can be a relevant factor for consideration.
  • The attorney should ascertain whether either party has been involved in a common law marriage, as it may affect property division, spousal support, or inheritance rights.
  • Including specific provisions addressing the recognition or non-recognition of common law marriage can provide clarity and protect the parties’ interests.

VIII. Common Misconceptions and Myths about Common Law Marriage:

  1. Timeframe: Common law marriage does not require a specific duration of cohabitation. It is the combination of mutual consent, cohabitation, and public acknowledgment that establishes the marriage.
  2. Holding Out as Married: Merely referring to each other as husband and wife in social situations or using the same last name does not automatically create a common law marriage. It requires a broader public recognition of the relationship.
  3. Divorce: Dissolving a common law marriage requires legal procedures, similar to a traditional marriage. Merely separating or ceasing cohabitation does not terminate the marriage.

Conclusion: Common law marriage, although recognized in some states, is not universally accepted throughout the United States. Understanding the legal requirements, recognition, and dissolution procedures specific to each state is crucial for couples involved in such relationships. In New York State, while common law marriages formed in other jurisdictions may be recognized, no new common law marriages can be established within the state’s boundaries.

As family law attorneys, it is essential to consider the existence of previous common law marriages when drafting prenuptial agreements, ensuring the protection of clients’ rights and interests. It is also important to understand that, while people who are considered to be married in another state through common law marriage, should qulify for social security spousal benefits, social secuirty survivor and death benefits, and should be able to inherit property from their former spouses according to new york law, it may be necessary to prove the status of the former common law marriage, so that it is even more important that there be a valid will which will avoid problems in obtaining proof.

The same issues can come up if someone dies without a will and new york courts have to determine who the children of the marriage are, in the absence of a wedding ceremony or court documents.

By debunking common myths and misconceptions, and being alert to the ramifications of any possisble prior common law marriage, we as family law atttorneys can provide accurate information and guide individuals through the complexities of common law marriage and its implications in family law matters.