Your Legal Rights in a Domestic Partnership – Common Law Marriage
This article is intended for anyone involved in a long-term, committed relationship, who has never been formally married, and wants to know their rights. Whether your relationship recently ended, you’re in crisis, or you just want to know if being formally married makes a difference these days, you’ll probably be surprised by what the law says.
A common misconception is the belief that there is little legal difference between marriage and cohabitation. This sometimes arises from the mistaken belief that after a period of cohabitation (frequently believed to be seven years), a domestic partnership instantly transforms into a common law marriage. This myth, although it has the persistence of an urban legend, is pure fiction. In truth, you cannot enter into a common law marriage within the limits of New York State. And, common law marriage has become less and less favored across the country over the last hundred 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 another five that do. , but only if the relationship was established before a certain date (Pennsylvania, Georgia, Idaho, Ohio, and Oklahoma). There are some 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 investigation does not end there. There are several states, including New York, that recognize common law marriage relationships that were established while the parties were residing or residing elsewhere, that is, 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 when the couple temporarily resided in said jurisdiction, maintaining their domicile in New York all the time.
In such cases, the court’s determination of whether a common law marriage was established will depend on the legal rules of the particular state where the parties resided. These and previous standards vary from state to state. And contrary to common law marriage folklore, common law marriage states look for more than just whether the couple reached their seventh year of living together.
Some legal factors that are considered significant in common law states are: (i) the amount of time spent in the state; (ii) if the parties “presented themselves” as husband and wife; (iii) if they functioned as an economic entity; (iv) if they ever entered into an agreement stating their intention to be considered married (even though they were never formally married); (v) if either party was married to another person at the time; and (vi) whether the parties actually physically resided together. Lastly, in each of these states, you have historically had to be of the opposite sex.
Conversely, factors that will not normally be considered significant (factors that you might argue relate more directly to notions of fairness) include (i) the sacrifices made by either party in entering the relationship (what lawyers call “prejudicial trust”), (ii) ) the standard of living enjoyed by the parties, (iii) whether one of the partners might not be able to maintain that lifestyle after the separation (or even stay at himself during the period), and (iv) if there were children of the relationship.
This issue came to public attention recently in New York when prominent film actor William Hurt was taken to court by his then ex-girlfriend, an actress and dancer named Sandra Jennings. The decision in that case underscored, among other things, how crucial questions of credibility can be.
The common law jurisdiction marriage involved was South Carolina, where the parties had resided during the filming of “The Big Chill.” The gist 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 sight of God”, that they had “a spiritual marriage” and “were more married than married people.” Mr. Hurt, for his part, denied ever having made these statements. There was also incontrovertible evidence that the parties never came forward as a married couple, even while cohabiting in South Carolina. On the other hand, the parties did have a child together.
In the appellate court’s decision, which dismissed all of Ms. Jennings’ causes of action (Jennings v. Hurt, 554 NYS2d 220), the Court noted in particular the following facts: (i) that Ms. Jennings he never mentioned any talk of an alleged “spiritual marriage” during his pretrial statement; and (ii) that a document, in which Ms. Jennings had allegedly signed her name “Hurt”, was in fact an altered copy into which the name “Hurt” had been inserted.
As to the legal proof required by South Carolina law, the Court held that a common law marriage proposal must establish “an intention on the part of both parties to enter into a marriage contract…as clearly on the part of the parties that the couple does not sneak up on either of them and catch them off guard”. The evidence on this point, ie factors suggesting that neither party considered themselves or presented themselves as married, also appeared to favor Mr. Hurt.
Another example of how difficult it can be to establish a common law marriage in a state where there is no common law marriage, such as New York, is one of my cases, which I will call A v. A (I represented the plaintiff’s putative common law wife). In A v. A, strongly believing the case, we chose to proceed first solely under a common law marriage cause of action, waiving non-matrimonial causes of action in the first instance, 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 Ms. A’s complaint. It was these claims, rather than the common law marriage cause of action, that ultimately served as the basis for her recovery. .
I am sure you will understand, even with a brief recitation of the facts, why we initially believed that Ms. A’s case for common law marriage was strong. Most amazingly, Mr. and Mrs. A remained a married couple for more than thirty years. They also raised a son 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 corresponding finger. In fact, only a handful of close friends and family members knew that the parties were not formally married. They were mentioned in every writing, every joint account, every tax return, etc., as Mr. and Mrs. AY, Mrs. A had even legally changed her last name to A fifteen years earlier, upon becoming a naturalized citizen.
In addition, Mr. A always told Ms. A that they did not need to formalize their marital status, supposedly 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 be formally married. Needless to say, that day never came. In fact, on the brink of retirement age, Mr. A initiated their separation. By then, they had established a more than comfortable lifestyle (including residence in a $1.5 million penthouse), a lifestyle that Ms. A certainly couldn’t maintain on her own. And, all that Mr. A was initially offering Ms. A was a stipend of $50,000 per year, for which he in return asked Ms. A to quietly walk away from her relationship of more than thirty years.
The parties had also traveled extensively, although they lived in the same New York City borough for the entirety of their relationship. Fatally for Ms. A, however, the only common law marriage jurisdiction they had ever traveled to was Washington, DC At this point, the Court’s decision, which granted Mr. A’s motion to dismiss the cause of common law marriage action, focused on the District of Columbia’s requirement that the parties to an alleged common law marriage must have done more than cohabit as husband and wife; they must have lived together after expressly agreeing, “in the words of the present tense”, to become “husband and wife”.
Rejecting our arguments, the judge held that this agreement must have been actually and explicitly entered into while the parties were physically present within the limits of Washington, DC. It was inconsequential that the parties had explicitly made this type of statement elsewhere. Because Ms. A could not assert that she and Mr. A explicitly made this type of statement, or even reiterated it, while she was physically present in DC, her cause of action was found to be improper. However, Ms. A prevailed in that portion of the Court’s decision which declined to dismiss several of her non-marital causes of action.
Conclusion
If you have come to the conclusion that your relationship might meet the legal criteria for common law marriage, I recommend that you speak to an attorney (preferably a family law specialist). And, to get advice you can trust, you should plan to set aside at least a few hundred dollars for the cost of additional legal research and consultation. The good news: If your relationship is found to be a common law marriage, you will generally have the same rights and obligations as any other spouse divorcing in this state.
On the other hand, if you have 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 you read Part II of this article, which discusses a variety of other legal concepts that may be applicable to your domestic relationship.