When people call our office asking about divorce or family court issues, we tell them the various documents we need to look at in order to best advise them. One of the documents we want to look at is their marriage certificate. Often, we have people who consider themselves married, have lived together for years, had children together, bought property together and they are surprised that they are not, in fact, married. New York has no “common law marriage.” There is an exception to that rule. New York will give full faith and credit to a marriage from another state or country where it was recognized. For example if you lived together in a state which did recognize common law marriage prior to moving to New York, you will be considered married here as well. People who get married in a religious ceremony in another country, Israel, for example, will be considered married here even though they did not have a secular marriage.
We have had cases where our client realizes after we have examined their paperwork and had a thorough consultation that they are not married, but some of the relief they seek can still be had. For instance, custody can be resolved in family court even where the parties were never married.
We have also had clients who, for various reasons, thought they were divorced, but in fact were not. One example was a client who had a separation agreement drafted with their spouse a number of years ago. Their lawyer told them that after a year it would turn into a divorce. Well, separation agreements do not magically turn into divorces, as this client discovered. What the lawyer meant was that, after one year, the couple could file an action to get divorced in court using the separation agreement as the ground. Luckily, neither party had remarried or had children, so we were able to get a divorce granted, albeit many years after they had separated.
We have also had cases where people got married religiously in a country which recognized that marriage and then got an annulment or a “get” (Jewish divorce) in this country and thought they were divorced. Due to the fact that New York recognized that foreign marriage, a New York divorce also needed to be obtained. This was not only to settle the issue of the marriage, such as property distribution and child custody, but so that each party was free to get married to someone else. Without the New York divorce, they might get married to another person and that marriage would be void, leaving all in a precarious position.
Should your lawyer ask to see your marriage certificate or your divorce judgment when you come in for your consultation, don’t think they are just trying to use up more of your time. We want to make sure that we understand exactly what position you are in, even if you don’t! Only then can we give you the best advice.
Deborah E. Kaminetzky, Esq.
Kaminetzky & Associates, P.C.
132 Spruce Street
Cedarhurst, New York 11516