FAQs

FAQ's and Law Updates

We have provided a place to learn about common law questions. Click on a question below and the answer will appear below the question.

  1. Q: Is there a residency requirement?

    A:

    New York State has no residency requirement for marriages.

  2. Q: What if I entered into a civil union or domestic partnership in another jurisdiction with someone else?

    A:

    The law of the state that issued your union or partnership may contain limitations on any subsequent marriage, and it is unclear whether New York would treat the prior civil union or domestic partnership as an impediment to a marriage in New York. It is recommended that you dissolve the prior union or partnership. It may be possible to do so in New York courts, but you may have to obtain the dissolution in the state that issued it. If you are married in New York at the same time you still have a civil union or domestic partnership with someone else, it is unclear whether your marriage could be voided.

  3. Q: What are the general rights and obligations that come with marriage?

    A:

    There are a host of legal rights and obligations that come with marriage and the information provided here is an overview; and it is not exhaustive. Once legally married, each spouse will have all the rights that New York law provides to a spouse including without limitation: the right to inherit even in the absence of a will; the right to sue for wrongful death and the spousal privilege against being compelled to testify against your spouse.

    Spouses also have legal obligations to each other, including a general duty to support the other spouse upon a divorce, a spouse may have a duty to pay maintenance (formerly called alimony) to the other spouse, and all property obtained during the marriage, regardless of whose name it is in, will be divided equitably by a court. Similarly, upon a divorce, all debt accrued during the marriage, regardless of whose name the debt is in, will be allocated equitably by the court, usually in the same proportion as the assets are divided. If however, one party incurs debt during the marriage for clearly non-marital purposes, the party who incurred that debt will generally be responsive for that debt.

    During the marriage, a spouse is generally not responsible for debts of the other spouse that were incurred prior to the marriage; nor is a spouse responsible for the debts incurred solely by the other spouse (although in other starts that are “community property” states, spouse will be liable for such debts) however, creditors to the spouse may try to collect the debt by levying upon jointly owned accounts or property. 

    There are also numerous significant tax and other financial implication that arise from a marriage. Those issues are beyond the scope of this FAQ.

  4. Q: Is there a waiting period?

    A:

    Yes. Although the marriage license is issued immediately, the marriage ceremony may not take place until 24 hours after the exact time that the license was issued. When both applications are 16 years of age or older, the 24-hour waiting period may be waived by an order of a justice of the Supreme court or a judge of the County Court of the county in which either spouse resides. If either person is under 16 years of age, the order must be from the Family Court judge of the county in which the person under 16 years of age resides.

  5. Q: Can I change my name if I get married in New York?

    A:

    One of 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.

  6. Q: Should we execute a prenuptial agreement?

    A:

    A prenuptial agreement is not required, but a couple may execute one if they wish. A prenuptial agreement can provide for virtually any ownership and division of assets and allocations of debt upon a divorce; and can provide for no maintenance, or a set amount of maintenance, upon a divorce. A prenuptial agreement can also help to shield one spouse from the debt of the other spouse. While a prenuptial agreement can set forth the parties’ desired arrangements with respect to custody or support agreement that it finds is not in a child’s best interest. Prenuptial agreements must be in writing, signed, and acknowledged in a specified manner.

  7. Q: How long is the license valid?

    A:

    A New York State marriage license is valid for 60 days (except for active duty military personnel, for whom the validity may be longer).

  8. Q: What is the Defense of Marriage Act?

    A:

    The Defense of Marriage Act, known as "DOMA" is a 1996 federal law that permits states to disregard the marital status of same-gender couples legally married in other jurisdictions. This means that when same-sex couples travel to another state, their marriage rights may be reduced, or eliminated completely, depending on the laws of the particular state. DOMA also prohibits the federal government from recognizing legal same-sex marriages. Therefore, same-sex spouses are excluded from all federal benefits and protections available to other married couples, including Social Security survivor benefits, the right to file joint tax returns, the right to take family leave, the right to petition for permanent residence for a foreign spouse and more. The Respect for Marriage Act, introduced in the United States Congress, would repeal DOMA and require the federal government to treat all married couples equally and to honor all state definitions of marriage.

  9. Q: What if we have children?

    A:

    It is unclear whether New York law will recognize the biological child of one spouse born during the marriage as the legal child of both spouses. Even if New York law does recognize both spouses as the legal parents of the child, other states may not extend the same recognition. A child born prior to the marriage will not be considered the child of the non-biological parent obtain a second parent adoption. As with marriage, legal adoption of a child has substantial obligations and rights. In brief, the biological parent is giving up his/her right to be the sole legal decision maker (meaning that, in the event of a divorce, both parties have equal rights to seek custody and visitation), and the adopting parent is taking on the obligation to financially support the child.

  10. Q: How do couples get married in New York?

    A:

    A couple wanting to marry in New York State must apply in person for a marriage license at the office of any town or city clerk in the state. The application for a license must be signed by both parties in the presence of the town or city clerk. A representative cannot apply for the license. This applies even if the representative has been given a Power of Attorney. If the couple meets the requirements for issuance of a marriage license under New York State law, the clerk will issue the license upon payment of the required fee. Once the marriage license is issued, it must be delivered, within sixty days, to a clergy-person or official who is authorized to solemnize the marriage in New York (DRL & 13). A marriage license issued in New York State can be used anywhere within the state.

  11. Q: Are all town and city clerks in New York State required to issue marriage licenses to same-sex couples?

    A:

    Yes. If a couple meets the legal qualifications for the issuance of a marriage license (e.g., proper identification, age, marital status, etc.), no application for a marriage license may be denied on the ground that the parties are of the same sex. A clerk does not have discretion to deny a license to otherwise qualified applicants.

  12. Q: Are New York same-sex marriages valid in other jurisdictions?

    A:

    The federal Defense of Marriage Act (DOMA) creates an exception to the full-faith and credit clause of the U.S. Constitution by permitting states to disregard the marital status of the same-sex couples legally married in another state. Several states also have so-called "mini-DOMAs" that dictate that the state not recognize same-sex marriages from other jurisdictions. Therefore, legally married same-sex couples who travel to states that do not recognize same-sex unions may be considered legal strangers in those jurisdictions.

    Is it recommended that same-sex couples travel with copies of health care proxies, powers of attorney and hospital visitation authorization forms for use in the event of an emergency. However, even these documents may not protect same-sex couples if the laws of a particular jurisdiction do not recognize their validity.

  13. Q: Where can additional information be obtained?

    A:

    Information regarding marriage licenses can be obtained from the new York states department of state at https://www.health.ny.gov/vital_records/marriage.htm the new York city clerk’s office can be reached at (212) 669-2400 or via their website http://www.citycleark.nyc.

  14. Q: What are the requirements for issuance of a marriage license?

    A:

    In order to qualify for a New York marriage license, an applicant must be 18 years of abe or older, unmarried and have proper documentation to prove age and identity. There are additional requirements for persons under the age of 18. 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. New York State does not permit marriage licenses to be issued to a parent and child or grandparent and grandchild, brothers and/or sisters of either full or half blood, or an uncle/aunt and niece/nephew, regardless of whether or not these persons are legitimate or illegitimate offspring.

  15. Q: What should I do if a town or city clerk refuses to grant a marriage license to a same-sex couple?

    A:

    As a practical matter, you might travel to the next town and obtain a marriage license from that town's or city's clerk. You also may be entitled to pursue legal action against the clerk who refued to issue the license and the town or city.

  16. Q: Once a licese is issued, who may solemnize a marriage in New York State?

    A:

    In addition to authorized members of the clergy, New York law (DRL & 11, 11-a-c) authorizes certain public officials to solemnize marriages, for example, mayors, county executives, judges, magistrates, justices of the peace, municipal marriage officers and others.

  17. Q: Is a particular form of solemnization required?

    A:

    No particular form of solemnization is required or mandated. However, the parties must solemnly declare, in the presence of the officiating person and at least one witness, that they take each other as spouses (DRL & 12).

  18. Q: Can a same-sex couple get married in a church?

    A:

    Yes, as long as the person solemnizing the marriage is authorized by law. Each religious institution may decide for itself which marriages it will solemnize. Many churches welcome same-sex couples, others do not.

  19. Q: If we were previouly married in another state or country, do we need to get married again to be legally married in New York?

    A:

    No. Marriage between individuals of the same sex legally performed in other jurisdictions are recognized in New York.

  20. Q: If we were previously married in another state or country, can we get married again in New York?

    A:

    Yes, if you are marrying the same person.

  21. Q: What if I was previously married to someone else?

    A:

    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. If you remain married to a person who is living, you cannot marry someone else until you are divorced from your spouse.

  22. Q: What if we are already registered domestic partners?

    A:

    The New York City Administrative Code provides that if "you or your domestic partner get married to each other or to another person, your domestic partnership is automatically terminated." If you registered as domestic partners elsewhere, the law of the state or municipality that issued your domestic partnership will likely contain provisions for terminating the domestic partnership.

  23. Q: What if we entered into a civil union or domestic partnership in another state or country?

    A:

    The law of the state that issued your civil union or domestic partnership may contain limitations on any subsequent marriage. Although New York law permits a married couple to remarry each other, it is unclear whether New York would authorize a marriage where the couple previously entered into another type of relationship sanctioned by another state, or whether New York would require you to follow the laws of the state that sanctioned your domestic partnership or civil union. It is recommended that you disclose your prior civil union or domestic partnership on the application for the marriage license.

  24. Q: What if I am a registered domestic partner with someone else?

    A:

    The New York City Administrative Code provides that if "you or your domestic partner get married to each other or to another person, your domestic partnership is automatically terminated." If you want a record of the termination, you can file a Termination Statement in person at one of the office location of the New York City Clerk, or you may submit a Termination Statement online (https://www1.nyc.gov/cityclerkformsonline/) and then visit one of the City Clerk offices during regular business hours to complete it. If the Termination Statement has not been signed by both partners, you must notify the other partner of the termination by registered mail, return receipt requested. The fee for Domestic Partnership Termination is $27 by credit card or money order payable to the City Clerk. You must show a valid form of identification. A copy of a Termination Statement can be obtained at: http://www.cityclerk.nyc.gov/downloads/pdf/domestic_partner_termination.pdf

  25. Q: Can an attorney set a contingent fee on a Probate Proceeding?

    A:

    When representing a decedent’s estate, it is not ethical to charge a contingent fee, nor a fee determined solely by the size of the estate. Our fees are reflective of the work required to accomplish the task, the uniqueness or difficulty we are facing, the need for expeditious service, or the customary fees for similar services charged in our Community. We are always happy to discuss fees with you in advance.

    As with every rule, there is an exception. If we are representing a client in a contested probate matter, and the client is unable to afford our fee, we can consider a contingent fee in limited circumstances. We invite you to make inquiry.

  26. Q: Did you know that NYS Medicaid covers personal aids and home-based care as well?

    A:

    The Medicaid program in New York State covers a type of home care services called Personal Care Assistance (aka PCA or "home attendant").

  27. Q: How to Cope With Big Rate Hikes on Long-Term Care Policies?

    A:

    Click here for the answer

  28. Q: Know the 10 Signs of Alzheimer's?
  29. Q: Should you use computer services such as LegalZoom to prepare your will?

    A:

    Computer, or online legal services are often a good and affordable alternative to seeking legal counsel and advice; however, when preparing an estate plan we feel there are too many variables to consider and would generally counsel against it. Other documents however, are very amenable to online legal services. We invite you to visit our own online legal service at www.kroll-lawdocs.com.

  30. Q: What are Supplemental Needs Trusts?

    A:

    Supplemental Needs Trusts (SNT’s) are legal tools used to help people with disabilities retain more of their income and more of their assets, while maintaining their vital public benefits. These Trusts (called “Special Needs Trusts” in other Jurisdictions) can be created as a Living Trust, or as Testamentary Trust. They can be created with money from third parties, or with moneys already owned by the individual receiving benefits. The type of Trust will vary and a different type of Trust will be required depending on the situation.

  31. Q: What is Medicaid?

    A:

    Medicaid is a federally mandated, state regulated, and locally administered program which provides medical assistance to eligible individuals, based on both an asset test and an income test.

  32. Q: What is the definition of "Guardianship"?

    A:

    A legal guardian a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person. A person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. Courts have the power to appoint a guardian for an individual in need of special protection.

  33. Q: When Should You Take Your Social Security Retirement Benefits?

    A:

    Click Here for Answer