Common Law Marriage
Common law marriage is a legally recognized marriage without a licensing procedure and marriage ceremony. Common law marriage confers the same rights, benefits and responsibilities of other legally recognized marriages and once a common law marriage has been legally recognized, you must obtain a divorce (or one person must have passed away) to legally end the relationship.
Common law marriage can only be created in some states and is usually limited to heterosexual couples. Furthermore, living with someone is usually not enough evidence to support a common law marriage. If you wish to learn more about establishing or avoiding common law marriage, it is best to speak with a family law attorney.
Is Common Law Marriage Legal?
While common law marriage has been widely abolished, it may be established in several states (see sidebar). Some of these states only "grandfather" existing common law marriages, meaning they only recognize marriages created before a certain date. A smaller group of states recognize common law marriages for limited purposes only, such as for determining inheritance.
Importantly, under the "Full Faith and Credit" clause of the United States Constitution, once a common law marriage between a man and a woman has been established in a state where such marriage is legal, the marriage must be recognized by all states.
Even if you are convinced that you are or are not married, it is important to check with a family lawyer to be sure of your status. Moreover, if you have moved or are considering moving from one state to another, it is especially important to speak with a family lawyer first.
What Constitutes A Common Law Marriage?
Many misconceptions exist as to what creates a common law marriage. For example, you may have heard that couples must live together for seven or 10 years to have a common law marriage but this is not true. Evidence proving common law marriage is usually based on documents (see sidebar) and actions showing the intention and agreement by the parties to be married. The key requirements that need to be shown usually include:
"Holding Out." A key element of common law marriage is publicly "holding out" or acting as a married couple. Common examples of "holding out" include:
- Taking the same last name
- Filing a joint tax return
- Referring to one another as husband and wife
Cohabitation. Though living together will not alone establish common law marriage, a "significant period of cohabitation" is almost always required. This period may be a set number of years (e.g., three years in New Hampshire) or simply enough time to establish the intent of the parties to be married.
Some states have additional requirements for establishing common law marriage such as consummation of the marriage and capability of consent to marriage. To learn more about the requirements for common law marriage in your state, contact a family lawyer.
Why Is Common Law Marriage Important?
Depending on the state, an unmarried couple who establishes a common law marriage may be entitled to enjoy the rights and benefits afforded a couple who have been statutorily married. These rights and benefits may include the following:
- Social security, pension and other benefits
- Medical proxy
- Wrongful death survivor benefits
- Parental rights (e.g., custody)
Before you can legally dissolve a common law marriage, a declaration of a common law marriage is important, and in fact necessary. There is no such thing as common law divorce but once a common law marriage is legally recognized it can be terminated according to the divorce laws of the state in which you are divorcing. A divorce legally terminates the relationship and defines rights with respect to:
- Spousal Support
- Child Support
- Child Custody
- Property Division
It is best to speak to an attorney who can advise you on any actions that may be required to safeguard your interests with respect to common law marriage and divorce.
Family Law Attorney
The laws can be complicated and often involve proactive steps to establish or to avoid a declaration of common law marriage. Contact a family lawyer to make sure your rights are protected.
For information on other legal issues such as birth injury lawsuits, divorce (including divorce cost), DUI laws and DUI penalties, please visit our pages devoted to these topics, or contact an attorney specializing in these areas of law.
An unmarried couple may be able to avoid a common law marriage with a properly executed cohabitation agreement.