You may be asking yourself whether or not you need an affidavit of marriage. Although marriage requirements vary from state to state, all states require that a couple first obtain a marriage license as proof that their marriage took place legally.
However, sometimes there are situations where spouses may need to prove they are legally married, especially where evidence of a valid marriage license is not available. In this situation, you may seek to execute an affidavit of marriage as proof a legal marriage exists.
What is an Affidavit of Marriage?
As noted above, an affidavit of marriage is essentially a legally binding document that provides proof a legal marriage exists between two people. The affidavit of marriage must be signed by the people who are claiming to be spouses and witnesses to the marriage. Although the requirements of an affidavit of marriage varies by state, the affidavit can usually only be signed by a couple who:
- Share the Same Residence: Simply put, if you do not reside with the person you are attempting to prove you are married to, the law questions this and your affidavit of marriage will likely not be recognized;
- Are Not Married to Anyone Else: United States law does not recognize polygamy (+2 legal spouses) or bigamy (more than 1 legal spouse);
- Have a Close Relationship with Each Other: This helps show that you are married to one another and prove the affidavit of marriage;
- Are of Valid Marrying Age: In order to get married in the United States, you need to be of marrying age. This means that in 48 of the 50 states in the United States you need to be at least 18 years old, in Nebraska the marriage age is 19 years old, and in Mississippi the marriage age is 21 years old;
- Are Not Closely Related by Blood: In general, marriage law does not allow marriage of persons who are closely related by blood or kinship (be sure to check your local laws to verify what levels of kinship are forbidden);
- Are Mentally Competent: Generally, in order to be validly married, both persons must have been competent at the time of marriage; and
- Share Living Expenses: This requirement also helps to prove a valid marriage and affidavit of marriage.
Many states will provide you an affidavit of marriage form, which is usually found online. It is important to note however, that the type of marriage affidavit you need to complete depends on your state of residence and the purpose of the affidavit. Further, the marriage affidavit generally must be signed in front of one witness and may need to be notarized.
Why Do I Need an Affidavit of Marriage?
As noted above, an affidavit of marriage is one legal way that you may use to prove the existence of a common law marriage. Unlike a traditional marriage, a common law marriage occurs without the need to have an official marriage ceremony or obtain a marriage license beforehand. However, some states do not recognize common law marriages.
In the states that do not recognize common law marriages, a common law married couple may need to complete a marriage affidavit to receive legal recognition of their marriage, and the benefits afforded to a legally married couple. Other reasons to execute an affidavit of marriage include:
- When a couple cannot locate their marriage license;
- If an employer asks one spouse to submit an affidavit in order to add the other spouse onto the company’s health insurance plan, because they do not have a marriage license to present;
- In order to prove a valid marriage to immigration officials;
- In order to show one spouse has legal right to an estate; or
- In order to prove to an insurance company of a marriage to receive certain insurance proceeds.
Are there Consequences to Signing an Affidavit of Marriage When I Am Not Actually Married?
Yes. Once again, an affidavit of marriage is a legally binding document. Thus, anyone who signs an affidavit of marriage knowing that they are not married to the person that they are claiming being married to can face severe perjury penalties.
Further, the same risk of perjury penalties applies to any witnesses who signs the document while knowing that the marriage does not really exist. Penalties may become more severe depending on the situation.
For instance, falsifying an affidavit of marriage for immigration purposes is considered a federal crime of marriage fraud and carries penalties of up to 5 years in prison, loss of residency benefits, fines up to $250,000, and further penalties.
Are Marriage Affidavits Able to Validate an Invalid Marriage?
No, marriage affidavits are only able to prove an otherwise legal marriage. An invalid marriage is any marriage that is not legal because of reasons such as bigamy, incapacity, or duress. Thus, you would likely not be able to satisfy the requirements for a valid affidavit of marriage listed above, and the document would not be recognized.
Do I Need an Attorney for a Marriage Affidavit?
Although not a requirement, there are certain situations where it is very important to prove that your marriage does exists, and having a properly completed marriage affidavit is an easy way to prove that.
You should absolutely seek out a well qualified and licensed family law attorney to assist you with drafting a valid marriage affidavit, especially if you are facing any situation where failure to provide a valid marriage affidavit carries penalties.
Further, if you have falsely signed an affidavit of marriage, either as a party or a witness, you should immediately seek the assistance of an experienced attorney.