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Your Legal Rights in a Living-Together Relationship – Common Law Marriage

admin — Wed, 14 Oct 2009 04:36:36 +0000

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.

Conclusion
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.

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.

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The Rule of Law

admin — Mon, 31 Aug 2009 09:00:42 +0000

One of the most fundamental requirements of a civil society is the rule of law which means that the people must follow the law of the land irrespective of his or her status or position in the society. In the modern world, the developed countries feel proud that their society is governed by the rule of law while most developing countries like India feel ashamed that their society does not have the rule of law. The developed countries are the role model for the underdeveloped countries, where the rule of law is still a distant dream.

Societies that follow rule of law are often considered more civilized as there is much more order in the society. Every thing in such societies appears to be in order. The roads are clean, lawns and parks are well-maintained, government officials work in office, trains and public transports run on time. Further, there is virtually no corruption in public offices. People are well paid, deliver better efficiencies and keep everything neat and clean. These societies appear perfect to the people of other parts of the world, who often wonder why they can’t be like them.

All societies need laws for their existence. Even though the laws may be different in each society, yet there are some basic principles that are common to all laws of the world. These fundamental principles are equality, fraternity, justice and liberty. The Indian constitution, for example, incorporates these goals in the preamble to the constitution which seeks to secure for all its citizens justice, liberty, equality and to promote among them the spirit of fraternity.

These principles are so universal in nature that they find place in every civilized society of the world. It is matter of great surprise that in reality the outcome of the rule of law is just the opposite. The more civilized a society is, the more is the inequality among its population – more injustice to the have-nots, less liberty due to strict enforcement of law and more hatred among the citizens based on race, caste and religion. What goes wrong in the implementation in the so-called rule of law?

Law of Nature

Indian thinkers in the Vedic period, i.e. around 3000 years before the birth of Christ, discovered that the universe does not perform its functions at random but follows certain laws. These were called “Rita” or the universal laws or principles that guided the universe. The progress of man can be largely attributed in understanding these basic principles of nature and exploiting them for the benefit of the human race at the cost of the rest of the creations. The laws of man, therefore, run contrary to the laws of nature as they are human-centric and not designed for all the creations of God or Nature.

One of the basic differences between man-made-laws and the laws of Nature is that the laws of nature are spontaneous as they require no effort in implementation. For example, in a natural piece of earth like a forest, the earth produces trees, plants, fruits and vegetables spontaneously without any need of watering or breeding. The nature itself provides timely rain and fertilizer to the new plants. The forests and the mountains are covered with greenery and beauty, which is purely natural since it comes without any effort.

On the contrary, the man-made creations like parks, trees, plants are artificially made. They too may look as beautiful as the natural ones, yet they cannot survive without regular effort on the part of man. Imagine a park, which is not maintained for a few months, or a house not cleaned for months. It will lose all its beauty and soon be filled with dust and weeds. No building or modern gadget can survive without external effort from man. However, all natural creations are able to survive on their own and maintain their existence; and enjoy their life without any external support.

The laws of nature are just as they treat every specie (and not only man) with equality. In a jungle, every specie gets its due share of food, air and water which enable them to live a dignified life without being dependent on any other creation. Nature makes no distinction between one specie, and the other as all species are the children of the same God.

However, in the man’s world, every other creature is killed if it is not useful for man. They can survive only if they can be useful for man. Thus man’s world does not treat any other creature of the nature with respect and does not provide them any right of equality, liberty, justice or fraternity. He cleverly usurps this universal law and makes it applicable only for human beings. For all other lesser species, he has created a man-made-law, calling it ‘the law of jungle’ or ‘the survival of the fittest’ which justifies his domination over the weak creations. The fact, on the contrary, is that the laws of jungle are far more just and equal for all species than the man-made-law.

Most men are not concerned about the way they treat the lesser animals as they feel that ‘the survival of the fittest’ theory is more logical than the laws of nature. However, they forget that every principle created in the universe has to be applied on them also and that they may not always be a beneficiary. Man-made-laws do not stop with animals but they soon spread their wings to encompass human beings, too. This is where conflicts between man and man starts that gives rise to hatred and wars. Man feels the pinch when the law of jungle is applied against them and the law of nature is denied to him. He is hurt when he is treated like weeds by the society.

Weeds: The Undesirable Plants of Nature?

One of the most interesting creations of the natural world is weed. Weeds are undesirable vegetation in the kingdom of plants. Weeds are defined as any plant that is not valued by the human society and usually tends to overgrow or compete with valued flora. Weeds are the plants which are considered by human beings as unattractive, undesirable, or troublesome.

In the natural world, man has to continuously fight against weeds to make their artificial plants survive. Weeds grow automatically and if the artificial gardens do not have the support of man, it is soon overpowered by weeds and the whole field or garden becomes full of weeds. Weeds are created by Nature (God) as no human effort is required to grow them. They are, however, so powerful that man has to continuously guard his creation from these weeds, lest all creation of the civilized society is destroyed. Weeds are as undesirable to man in the world of plants as criminals in the human society.

Criminals: The Necessary Evil for the Civil Society

Similar to weeds in the natural world, there is a growth of criminals in civilized societies. Who these criminals are? Why do they grow? Whether the criminals are healthy people or are they mentally ill as often thought by the civilized world?

Criminals are defined as the people who commit crime. Crime is defined as an act that is a violation of the criminal law that is punishable by law. Crime is usually considered an evil act and criminals are often seen as evil created by Devil, out there to destroy the civilized citizens, the children of God.

There are many similarities between criminals and weeds. Criminals grow automatically in every society and the society has to work hard to weed out these criminals. Criminals like weeds are so powerful and competitive that they have the power to defeat the civilized people. They are, therefore, fought jointly by the society. Yet in every society, there is crime and there are criminals. We are used to look criminals as evil that is unnecessary just like weeds. Yet if God (Nature) is the creator of all, then everything in this world must have been created with a purpose. “What could be the purpose of creation of criminals?” We wonder.

Criminals are, as a matter of fact, creation of the civilized world. In an uncivilized world, there would be no law, so there can be no violation of law and hence, no criminal. If we wish to understand the utility of criminals in the civilized world, we must imagine the world of nature without weeds. In such a world, all plants will have to be grown by man with artificial watering – canals, tube-wells, and other irrigation systems used for agriculture. In all certainty, man will grow only such crops and plants that are useful to man and the rest of the species would surely not survive in the man’s world. Further, man’s energy is limited and with all his effort, he can hardly take care of a minuscule part of the world by artificial plantation, so the rest of the physical world would be without plants and so without oxygen and other animal life and eco-system. This will soon lead to the end of the world including the human being.

The role of criminals is similar to the role of the weeds. Imagine a world without crime i.e. everyone follows the law of the land without questioning. It will only provide status quo in the world. Kings will always be kings and only their children or loved ones can become kings. Poor will always be poor. Kings will frame more inhuman laws that would give them more powers. The less fortunate people would die out of hunger and poverty as they won’t break the law and the state will have no obligation to feed them. Thus the world without criminals would be a place where people will die due to inaction, boredom and cruelty. Such an ideal world, indeed, would be the most inhuman and most undesirable to mankind.

Thankfully, people called criminals automatically grow in every civil society as soon as man creates laws to govern it. The laws of man are always challenged by them since they are mostly against the laws of nature i.e. equality, justice, liberty and fraternity. States always have to face opposition from such people who break the law and are known as criminals. They may have an ugly appearance as weeds but they only provide oxygen to the society for its life. Thus in posterity, people recognize them not as criminals but as heroes.

The Path of Heroism

While man hates criminals, he worships the heroes. He can lay his most valuable possession i.e. his life on a single call from his hero. Who are these heroes? Are they law-abiding civilized people or the law-defying criminals? Take the example of Mahatma Gandhi in the modern world. He was perhaps the biggest criminal in the time of the British rule in India and he was jailed many times on charges of being waging war against the state. He spent more than 15 years in jail for his various crimes. Yet the people of India call him ‘Father of the Nation’ and love him more than any civilized person on the earth. Nelson Mandela spent 27 years in jail, yet he is a national hero not only for South Africa but for the entire world.

In history, we can find numerous examples of great people who have broken the law and having been punished for their criminal acts. The list includes people like Christ, Prophet Mohammad, Socrates and Galileo. Yet it is these people who changed the history of the world and they are rightly worshiped as heroes by the masses even after their death.

How many people you have ever known who have become heroes without breaking the law and committing crimes in their time? Perhaps none. Heroes are created not by following the law but by breaking the law.

Rule of Divine Law

It is not always good to follow the law blindly as it provides order and rule of law in the society but kills the humanity as the implementation of most of the man-made laws are against the natural laws. Man-made laws are often disguised under the cover of natural laws like equality, justice, liberty and fraternity yet they serve just the opposite purpose. Most people see the letter of the law but fail to grasp its spirit. One must understand that breaking man-made laws is one of the fundamental requirements of all civil societies, if it contradicts the natural or divine laws. Thus every person who breaks the law need not be a criminal. One must go deeper into the facts before declaring a law-breaker to be a criminal. The key distinction perhaps would be to see if he is breaking the law for the interest of the humanity or for his own selfish end. Is it need-based or greed-based? There lies the distinction between good and evil, between a true criminal and a hero. One who is breaking a law for others or to fight injustice is a hero and not a criminal. A poet said “Jo lade din ke khet, Sura toi” (One who fights for the weak is the real hero).

Mr. Awdhesh K Singh holds his B. Tech. from Institute of Technology, Bananas Hindu University Varanasi and M. Tech. from Indian Institute of Technology, Delhi. He was granted study leave for the PhD course in 2002, for doing PhD from ABV- Indian Institute of Information Technology and Management (IIITM) Gwalior, India. His PhD thesis on the topic “Expert System based Decision Support System for E-Governance: An Application to Indian Customs” is undergoing evaluation.

He has published several papers in International Journals and Conferences on the subject of E-governance and the application of Artificial Intelligence tools like Fuzzy Logic (FL) and Expert Systems (ES) for Indian Customs. He also has keen interest in the study and application of Indian Philosophies for solving the real-life problems of the modern world.

Is Civil Litigation Worth It?

admin — Fri, 21 Nov 2008 13:25:14 +0000

It’s not always worth it to pursue civil litigation. Oftentimes small claims courts don’t offer enough compensation to pay for the actual damages necessary. This means you either get left hanging or take your case to the next level in the process of civil litigation.

Both of these situations require you to pay higher costs, and you’re going to take more risk (after all the time, hard work and expense there’s a chance the judge won’t award you anything).

First, take a good hard look at how much money you can realistically win if you go to court. If your case is best heard in small claims court, then take a look at what limits your state imposes on small claims awards.

It’s easy to find this information. Make a quick phone call to the courts (listed in the phone book), or take a look on the Internet. Government rules can change at anytime, so make sure the source you use is as current as possible.

Civil litigation isn’t going to be worth it if the compensation you are likely to receive isn’t enough. If the judge can’t legally award you an amount close to what you want, there’s no point in pursuing it. This option is only worthwhile if the stakes are particularly high. In most states, the difference between small claims limits and the amounts you can win from going to formal civil court can be quite substantial.

If you decide to pursue a case in civil court it can be very expensive. In fact, it can sometimes cost more than you originally wanted to ask for compensation. If you have a lawyer handling your case (you should if you’re filing a formal lawsuit), court expenses will be subtracted from the whole settlement amount, then the lawyer will take his fee (usually somewhere between 30-40%), then you get what’s leftover. If your case falls into this category, you might want to look at arbitration as an alternative.

With civil litigation, there is always a chance you’ll end up with nothing, no matter the limits you might be faced with. This is why it’s so important to look at your case very carefully and make sure it’s worth it before you file final papers in court. Go over your side of the story and make sure that your claims are valid. Make sure you can show without a doubt that the other party is truly liable for damages.

No matter the proof you have, make sure you can present your case in as short a time as possible. Practice in front of friends or family if you have to and see how much of a convincing argument you can make in just a few minutes.

Take a look at the other side’s case too. Is their argument sound? Can you counter their arguments? Will the other side be able to make you look bad in front of a judge? If you weigh these factors and still feel confident that you can get a higher award from a judge than from the adjuster, take the next step.

Now it’s time to see a lawyer. A lawyer might be able to help make your case more airtight and come up with good arguments as to why you deserve compensation. Nonetheless, make sure your case is good, because a lawyer won’t even want to consider it if he doesn’t think you can win.

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