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Information on Getting Married in New York State

 The Marriage License

Where do you get one?

A couple who intends to be married in New York State must apply in person for a marriage license to any town or city clerk in the state. The application for a license must be signed by both applicants in the presence of the town or city clerk. A representative cannot apply for the license on behalf of the applicants. This applies even if the representative has been given a Power of Attorney. Notarized marriage license affidavits signed by the applicants cannot be substituted for their personal appearance.

Is there a waiting period?

Yes. Although the marriage license is issued immediately, the marriage ceremony may not take place within 24 hours from the exact time that the license was issued.

How long is the license valid?

A marriage license is valid for 60 calendar days, beginning the day after it is issued.

How much does it cost?

If the marriage license is issued by a town or city clerk in New York State outside of New York City, it costs $40. This fee includes the issuance of a Certificate of Marriage Registration. This certificate is automatically sent by the issuing clerk to the applicants within 15 calendar days after the completed license is returned by the officiant (person who performs the marriage ceremony). It serves as notice that a record of the marriage is on file. Couples who do not receive a Certificate of Marriage Registration within four weeks of the wedding should contact the town or city clerk who issued the license.

Is a premarital physical exam required?

No premarital examination or blood test is required to obtain a marriage license in NY.

Proof of Age and Identity- Each person is required to establish      

1.  proof of age and 

2.  proof of identity

by submitting to the issuing clerk one of the following age and identiry related documents from each of these lists:

  1. Birth Certificate
  2. Baptismal record
  3. Naturalization record
  4. Census record

And one of the following identity related documents:

  1. Driver’s license
  2. Passport
  3. Employment picture ID
  4. Immigration record

Familial Restrictions

A marriage may not take place in New York State between an ancestor and descendant, a brother and sister (full or half blood), an uncle and niece or an aunt and nephew, regardless of whether or not these persons are legitimate or illegitimate offspring.

Previous Marriages

Information regarding previous marriages must be furnished in the application for a marriage license. This includes whether the former spouse or spouses are living, and whether the applicants are divorced and, if so, when, where and against whom the divorce or divorces were granted. A certified copy of the Decree of Divorce or a Certificate of Dissolution of Marriage may be required by the clerk issuing the marriage license.

Surname Options

Every person has the right to adopt any name by which he or she wishes to be known simply by using that name consistently and without intent to defraud. A person’s last name (surname) does not automatically change upon marriage, and neither party to the marriage is required to change his or her last name. Parties to a marriage need not have the same last name.

One or both parties to a marriage may elect to change the surname by which he or she wishes to be known after the marriage by entering the new name in the appropriate space provided on the marriage license. The new name must consist of one of the following options:

  • the surname of the other spouse;
  • any former surname of either spouse;
  • a name combining into a single surname all or a segment of the premarriage surname or any former surname of each spouse;
  • a combination name separated by a hyphen, provided that each part of such combination surname is the premarriage surname, or any former surname, of each of the spouses.

The use of this option will provide a record of your change of name. The marriage certificate, containing the new name, if any, is proof that the use of the new name, or the retention of the former name, is lawful. The local Social Security Administration office should be contacted so that its records and your social security identification card reflect the name change. There is no charge for this service.

Whether you decide to use or not use this option at the time of your marriage license application, you still have the right to adopt a different name through usage at some future date. However, your marriage license cannot be changed to record a surname you decide to use after your marriage.

If you plan to use your married name at work, be sure to have your name changed in Social Security records. This way, you will get credit for all your earnings. It’s easy and it’s absolutely free. Contact any Social Security office. You can find the address and phone number of your local Social Security Office at http://www.ssa.gov. You will need documentary evidence showing both your old name and your new name.

Where can a marriage take place?

A New York State marriage license may be used within New York State only. Please note that if you go out of New York State to be married, your New York State marriage license will not be filed in New York State.

What about the ceremony?

There is no particular form or ceremony required except that the parties must state in the presence of an authorized public official or authorized member of the clergy and at least one other witness that each takes the other as his or her spouse. There is no minimum age for a witness. However, in selecting a witness, choose at least one person who you feel would be competent to testify in a court proceeding as to what he or she witnessed.

Who can perform a marriage ceremony?

To be valid, a marriage ceremony must be performed by any of the individuals specified in Section 11 of the New York State Domestic Relations Law. These include:

  • a member of the clergy or minister who has been officially ordained and granted authority to perform marriage ceremonies from a governing church body in accordance with the rules and regulations of the church body;

The officiant does not have to be a resident of New York.

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GAY DIVORCE IN NEW YORK

(from the New York Bar Association Website)

For gay couples living in a state that does not recognize same-sex marriage or does not allow same-sex divorce, it may not be worth getting married because you “may not be able to get divorced, you couldn’t remarry, your status would always be in question, and  you wouldn’t get the benefits of marriage anyway.”

States that don’t allow gay marriage “have been struggling with whether to grant divorces for marriages performed in states that do.” The two issues which come up are that each state has laws that require a minimum duration of residency to obtain a divorce in that state, and that “in many ‘non-recognition’ states granting a divorce is seen as a form of ‘recognition’ of the legal relationship.” For example, courts in Rhode Island and judges in Oklahoma and Texas have refused to grant divorces, while courts in New Jersey and New York have allowed them.

The California Supreme Court ruled that same-sex marriages that took place in 2008 before voters approved a ban will remain valid and recognized, such that “all of the rules of marriage apply, including divorce.” Since there are so many legal intricacies with same-sex marriage and divorce, the problem is “that in cases where the partners disagree over ‘parentage, money or property,’ one person may be able to ‘take advantage of the situation’ and use the legal confusion to deprive the other person of rights they would have if the partners were not the same sex.”

From a practical standpoint, while the state a same-sex couple lives in may not recognize the marriage, either spouse may relocate to a state that does recognize the marriage, and then some marital obligations (like joint liability debt) could attach, and it would be bigamous to marry someone else. This legal limbo is unacceptable to many. Some experts have recommended the following steps:

(1) Same-sex couples should sign prenuptial agreements or domestic-partner agreements to outline how assets should be divided in a split even if it cannot be enforced;

(2) The non-biological parent should adopt the children or move to a state where that parent can;

(3) All legal unions should be dissolved through the legal system whenever possible; and

(4) same-sex couples should work with tax specialists on dividing assets, dealing with retirement assets, and working through the tax implications of alimony. Co-parenting agreements which recognize the “parental roles, affections, and responsibilities that develop between the child and the nonbiological” parent can be utilized.

One commentator noted that the National Center for Lesbian Rights “recognizes that the co-parenting agreements may not be an enforceable legal document but may be useful to the nonbiological parent in establishing a parent-child relationship if that is disputed in the future.” An excellent discussion of various legal considerations when advising same-sex couples is contained in an article titled  Considerations, Pitfalls, and Opportunities That Arise When Advising Same-Sex Couples,” by Raymond Prather.

Custody and Access

When married heterosexuals who have children divorce, the parents are “automatically presumed to be the legal parents of their children” and absent a “termination due to unfitness, they retain their rights upon divorce.” With gay, lesbian, bisexual, and transgendered (GLBT) parents, the “rights are less clear.” Only the biological parent of the child in the gay relationship is “presumed to be the legal parent,” and the nonbiological parent typically “has to overcome the presumption in favor of the biological parent.” In states where gay marriage and civil unions are illegal, “the rights of non-legal parents are tenuous at best and depend on the willingness of judges to find de facto parenthood.”

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