This article is intended for anyone involved in a long-term, committed relationship, who has never been formally married, and wants to know his or her rights. Whether your relationship recently ended, it’s in crisis, or you just want to know whether being formally married makes a difference in this day and age, you’ll probably be surprised by what the law provides.
One common misconception is a belief that there is little legal difference between marriage and living together. This sometimes arises out of the mis belief that after a period of cohabitation (frequently believed to be seven years), a living-together relationship is instantly metamorphosed into a common law marriage. This myth, though it has the persistence of urban legend, is pure fiction. In truth, you cannot enter into a common law marriage within the boundaries of New York State. And, common law marriage has become less and less favored across the nation over the past hundred or so years.
According to my most recent research, there are only ten jurisdictions that continue to recognize common law marriage (Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and the District of Columbia), and five others that do so, but only if the relationship was established prior to a certain date (Pennsylvania, Georgia, Idaho, Ohio and Oklahoma). There are a few countries that also recognize common law marriage, or a status similar to common law marriage.
Here in New York, common law marriage has not been legally sanctioned since 1933. But the inquiry doesn’t quite end there. There are several states, New York being among them, that recognize common law marriage relationships that were established while the parties resided or sojourned elsewhere, namely in one of the aforementioned common law marriage jurisdictions. So, despite the abolition of common law marriage in 1933, our courts continue to recognize common law marriages that were established in other jurisdictions. And, this may be the case even where the couple only temporarily sojourned in such jurisdiction, all the while maintaining their domicile in New York.
In such instances, the court’s determination of whether a common law marriage was established will hinge on the legal standards of the particular state where the parties sojourned. These standards and precedent vary from state to state. And, contrary to common law marriage folklore, common law marriage states look to more than just whether the couple attained their seventh year of living together.
Some legal factors that are considered significant in common law marriage states are: (i) the amount of time spent in the state; (ii) whether the parties “held themselves out” as husband and wife; (iii) whether they functioned as an economic entity; (iv) whether they ever entered into an agreement stating their intent to be considered married (even though they never formally wed); (v) whether either of the parties was married to someone else at the time; and (vi) whether the parties actually physically resided together. Lastly, in each of these states, historically you’ve needed to be of opposite sexes.
Contrastingly, factors that typically won’t be considered significant (factors I might contend bear more directly on notions of fairness) include (i) sacrifices made by either party in entering into the relationship (what lawyers call “detrimental reliance”), (ii) the standard of living enjoyed by the parties, (iii) whether one partner might not be able to sustain that lifestyle after separation (or even support himself or herself period), and (iv) whether there were children of the relationship.
This issue most recently garnered public attention in New York when the prominent film actor, William Hurt, was brought into court by his then ex-girlfriend, an actress and dancer by the name of Sandra Jennings. The decision in that case underscored, among other things, how crucial issues of credibility can be.
The common law marriage jurisdiction involved was South Carolina, where the parties had sojourned during the filming of “The Big Chill”. The crux of Ms. Jennings’ claim was that during an argument, Mr. Hurt told her that, “as far as he was concerned, we were married in the eyes of God”, that they had “a spiritual marriage”, and “were more married than married people.” Mr. Hurt, for his part, denied ever making these statements. There was also uncontradicted evidence that the parties never held themselves out as a married couple, even while cohabiting on location in South Carolina. On the other hand, the parties did have a child together.
In the appellate court decision, which dismissed all of Ms. Jennings’ causes of action (Jennings v. Hurt, 554 N.Y.S.2d 220), the Court made particular note of the following facts: (i) that Ms. Jennings had never mentioned any conversation regarding an alleged “spiritual marriage” during her pre-trial deposition; and (ii) that a document, which Ms. Jennings had allegedly signed her name to as “Hurt”, was in fact an altered copy on which the name “Hurt” had been inserted.
As to the legal showing that was required under South Carolina law, the Court held that a common law marriage proponent must establish “an intention on the part of both parties to enter into a marriage contract…with such clarity on the part of the parties that marriage does not creep up on either of them and catch them unawares.” The evidence on this point, i.e., factors suggesting that neither of the parties considered themselves to be married, or held themselves out as such, also seemed to favor Mr. Hurt.
Another illustration of how difficult it can be to establish a common law marriage in a non-common law marriage state such as New York, involves one of my cases, which I’ll call A vs. A (I represented the claimant putative common law wife). In A vs. A, believing strongly in the case, we chose to first proceed solely under a common law marriage cause of action, forsaking in the first instance pleading non-marital causes of action, so as not to weaken the common law marriage claim. Subsequently, with permission of the Court, we added several non-marital causes of action to Mrs. A’s complaint. It was these claims, rather than the common law marriage cause of action, that ultimately served as her basis for recovery.
I am sure you will understand, from even a brief recitation of the facts, why we initially believed that Mrs. A’s case for common law marriage was a strong one. Most strikingly, Mr. and Mrs. A held themselves out as a married couple for more than thirty years. They also raised a child together (by then a grown woman), who was always led to believe that her parents were duly married. Each party wore wedding-style rings on the appropriate finger. In fact, no more than a handful of close friends and family ever knew the parties were not formally married. They were referred to in every writing, every joint account, every tax filing, etc., as Mr. and Mrs. A. And, Mrs. A had even legally changed her last name to A fifteen years earlier, upon becoming a naturalized citizen.
Further, Mr. A always told Mrs. A that they had no need to formalize their marital status, allegedly because they were in all respects a married couple. According to Mr. A, what was “his was hers”, and when they “got old”, they would get formally married. Needless to say, that day never came. Indeed, on the precipice of retirement age, Mr. A initiated their separation. By then, they’d established a more than comfortable lifestyle (including residence in a $1.5 Million penthouse apartment), a lifestyle that Mrs. A certainly couldn’t maintain on her own. And, all that Mr. A was initially offering to Mrs. A was a $50,000 per year stipend, for which in return he asked Mrs. A to quietly walk away from their thirty-plus year relationship.
The parties had also traveled widely, though they lived within the same borough of New York City for the entirety of their relationship. Yet, fatally to Mrs. A’s claim, the only common law marriage jurisdiction that they had traveled to was Washington, D.C. On this point, the Court’s decision, granting Mr. A’s motion for dismissal of the common law marriage cause of action, focused on the District of Columbia’s requirement that the parties to an alleged common law marriage must have done more than just cohabited as husband and wife; they must have cohabited after expressly agreeing, “in words of the present tense”, to become “man and wife”.
Rejecting our arguments, the Judge held that this agreement must have been actually and explicitly stated while the parties were physically present within the confines of Washington, D.C. It was inconsequential that the parties had explicitly made this kind of an avowal elsewhere. Because Mrs. A could not assert that she and Mr. A explicitly made this kind of an avowal, or even reiterated it, while physically present in D.C., her cause of action was deemed inadequate. Notwithstanding, Mrs. A prevailed in that portion of the Court’s decision that refused to dismiss several of her non-marital causes of action.
If you’ve concluded that your relationship might meet the legal criteria for common law marriage, I strongly recommend that you speak to a lawyer (preferably a family law specialist). And, for advice that you can rely on, you should plan to set aside at least a few hundred dollars for the cost of a consultation and additional legal research. The good news: if your relationship is found to be a common law marriage, you will generally have the same rights and obligations as every other divorcing spouse in this State.
On the other hand, if you’ve determined that your relationship is unlikely to qualify for common law marriage treatment (even though it may be one of significant financial interdependence), then I suggest that you read Part II of this article, which discusses a variety of other legal concepts that may be applicable to your living-together relationship.
© 2008 Jonathan K. Pollack all rights reserved
Jonathan K. Pollack is an attorney admitted to practice in New York State (1992), and a partner of the firm of Beldock Levine & Hoffman LLP, located in NY, NY (since 2002). His area of practice is matrimonial, family law, the rights of unmarried cohabitants, and alternative dispute resolution in these practice areas. He is a graduate of Columbia College, NY (1987), and Tulane Law School, LA (1992). He has served on the Association of the Bar of the City of New York Committee on Family Court and Family Law and on the Inter-Disciplinary Forum on Mental Health and Family Law. He is also a member of the Association for Conflict Resolution, and completed divorce mediation training sponsored by the Academy of Family Mediators in 1996. He has experience handling cases in Supreme and Family Courts in all five boroughs of New York City, as well Westchester and Nassau counties.
The firm’s website is at http://www.blhny.com
Mr. Pollack’s bio section is at http://www.blhny.com/attorney.cfm/ID/17
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