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Common Law Marriages in New York
A common law marriage is a private or informal marriage. These marriages were recognized from ancient times to the middle of the eighteenth century in England. A common law marriage is a valid marriage and to terminate the marriage a proceeding must be commenced in court. Despite the fact that many people refer to living "common law", a valid common law may or may not exist depending on the surrounding circumstances and the state of residence of the parties.
Prior to January 1, 1902 common law marriages were permitted in New York. From January 1, 1902 to January 1, 1908 common law marriages were abolished. As a result of a legislative error, common law marriages were again permitted in New York from January 1, 1908 to April 29, 1933, when they were finally abolished. Two parties cannot contract a common law marriage in New York regardless of the number of years they reside together and regardless of the fact that they refer to each other as husband and wife. New York will, however, recognized a common law marriage if entered into a jurisdiction that permits them. If New York residents temporary reside in or sojourn to a state that permits common law marriages, it is possible that a common law marriage can be contracted in that state.
In Carpenter v. Carpenter, 208 AD2d 882 (2nd Dept. 1994), the parties spent one week in Pennsylvania in 1969 and four days there in 1989. The court found that the parties held themselves out as husband and wife in Pennsylvania and accordingly entered into a common law marriage in Pennsylvania which New York will recognize. In Tornese v. Tornese 233 AD2d 316 (2nd Dept. 1996), the parties made a weekend trip to Pennsylvania in 1976 and for the succeeding 15 years and held themselves out to be husband and wife. A common law marriage was found, the court repeating the proposition that Pennsylvania does not require that persons reside within its boarders for any specified time before their marital status will be recognized.
However, not all persons who tried to establish a common law marriage were successful. In Cross v. Cross, 146 Ad2d 302 (1st Dept. 1989), the Appellate Division reversed the trial court which had found a common law marriage between Regina Cross and Christopher Cross. In Cross, the parties' relationship started in 1963 when each party was married to someone else and continued until 1983. It was not until 1979 that both parties were free to marry. From 1979 to 1982 the parties stayed two days in Washington D.C. and took a weekend trip toPennsylvania (both common law marriage jurisdictions). The trial court concluded that a common law marriage had been entered into Pennsylvania Pennsylvania and Washington D.C. The Appelllate Division found the Regina Cross failed to demonstrate by clear and convincing evidence that the parties entered a valid common law marriage after their illicit relationship ended and dismissed the action.
One of the most publicized cases concerning a purported common law marriage was Jennings v. Hurt, 160 AD2d 576 (1st Dept. 1990), wherein the Appellate Division affirmed the trial court's finding that there was insufficient evidence that William Hurt (one of the stars in the movie, "The Big Chill") and Sandra Jennings, while residing in South Carolina, held themselves out as husband and wife after the date of Mr. Hurt's divorce. Under South Carolina law, after a barrier has been removed (Mr. Hurt's divorce), there must be mutual agreement to enter a common law marriage.
New York has been very liberal in finding an out-of-state common law marriage even when there have been minimum contacts with the common law state and when an examination of the common law state's law might show that the particular state would not have found a common law marriage because the contacts with that state were minimal.
The states that recognize common law marriages are: Alabama; Colorado; Iowa; Kansas; Montana; New Hampshire (for inheritance purposes only); Oklahoma; Pennsylvania; Rhode Island; South Carolina; Texas; and Utah. Common law marriages are also recognized in the District f Columbia. There are no uniform requirements to establish a common law marriage. Each state has its own requirements to form a common law marriage.
New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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