Diana Mohyi: How New York’s Recognition of a Marriage Impacts Divorce

COMMON LAW WORKAROUND

Generally speaking New York does not recognize marriages that are not legally solemnized. The parties generally must have obtained a marriage license from New York County Clerk and participated in a marriage ceremony performed by a licensed officiant. How does this effect Divorce?

Parties who are not legally married cannot get a divorce in New York Supreme Courts and use of a matrimonial party’s equitable powers to divide their assets and set parenting rights into a legally enforceable order. They can go to New York family courts to get orders of custody and child support. 

If two parties are legally married and obtain a divorce, one party may seek to terminate the spousal support they are paying by claiming that the payee spouse has entered a new marriage. If the payee spouse is in a common law partnership, that does not count. To fulfill the requirements of Domestic Relations Law § 248, the parties must make affirmative actions that show they are holding themselves out as spouses rather than that they are simply sharing resources. See, Cherico v. Cherico, 222 AD 3d 1156 [3rd Dept. 2023], citing, Campello v. Alexandre, 155 AD 3d 1381 [3rd Dept. 2017], quoting, Northrup v. Northrup, 43 NY 2d 566 [NY Court of Appeals 1978]. For example, listing themselves under the same surname in a phone book or on a joint checking account  Id.

If you are interested in obtaining more information about your Divorce or other family law needs contact Diana Arnone Esq. of Diana Mohyi Attorney at Law, PC.

DANIEL QUINTANILLA