As a young adult, I remember hearing about this concept of marriage which
springs into existence based on two people residing together as “as
spouses “for seven years or more. I remember first hearing of the
concept when my mother described a relationship between a neighbor and
her “common law husband”. She explained to me that people
who lived together as spouses for seven years or more were married in
the eyes of the law.
Going through high school and college, I continued to think that the concept
was true. But my belief was undone during my second year of law school
when I took a handy little course called Domestic Relations Law—the
law of marriage and family in the State of New York. One of the first
topics covered by the court was the solemnization of a marriage. Solemnization
is the process of obtaining a legally binding marriage which meets your
state’s requirements. My understanding was shattered when I raised
my hand and asked why the concept of common law marriage was not listed
within the statute. “Because it doesn’t exist” was my
The professor went on to inform me that common law marriage had been abolished
in New York back in the 1930’s, 1933 to be exact. So, there I was,
in my professor’s class, almost 70 years after common law marriage
had been extinguished, thinking that the practice still existed. Well,
it doesn’t, at least not in New York – that is, unless you
have been “common law married” in one of the few states which
still recognizes the antiquated legal concept, which New York recognizes
under the Full Faith and Credit Clause of the United States Constitution.
There are 50 states in our great union, yet only 16 of them, namely, Alabama,
Colorado, District of Columbia, Georgia (if the marriage was created prior
to 1997), Idaho (if created before 1996), Iowa, Kansas, Montana, New Hampshire
(for inheritance purposes only), Ohio (if created prior to October 1991),
Oklahoma, Pennsylvania (if created before September 2003), Rhode Island,
South Carolina, Texas and Utah, still recognize Common Law marriage.
So, last week, when a prospective client came to my offices for a consultation
regarding the rights she had after continuing to reside with her ex-husband
(from whom she’d been divorced for over twenty years), I became
sick to my stomach knowing the advice I had to give her. You see, she’d
thought that, despite her very real, Court-granted divorce, the fact that
she’d remained “married” to her ex-husband by holding
herself out as his wife and engaging in the routine acts done by married
couples, apart from commingling finances, she would be her ex-husband’s
common law spouse.
Though it pained me to tell her that her thought was wrong, she was relieved
to have closure in her new understanding of the law. I also had to tell
her that the State of New York did not recognize the concept of Palimony
either. Palimony is the concept which allows the financially supported
partner of a long-term romantic relationship who financially relied upon
the other to request continued financial support after the relationship
has ended. New York does not recognize this claim. New Jersey does recognize
the claim, although with significant limitations as a result of a recent
change in the law.
So, if you are considering cohabitating with someone without the benefit
of marriage, think very carefully about the consequences of doing so.
Seek legal counsel so that you aren’t waking up twenty years later
wishing that you knew back when! Get the information you need now to help
you turn tomorrow’s fears into power when happily ever after fades away.