Common Law Marriage and Divorce

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 What Is Common Law Marriage?

Marriage is a specific legal status that is given to a couple by the government of their state. Marriage provides individuals with certain unique obligations, rights, and protections at both the state and federal levels.

Examples of benefits that are provided by marriages include tax benefits and property ownership. Civil unions are another example of a legal status that is similar to a marriage.

A civil union provides many of the same protections as a marriage but only at the state level and not at the federal level. For example, federal protections, including social security benefits and certain tax breaks, are not available to individuals in civil unions.

Another type of legal status is a domestic partnership. In domestic partnerships, some of the rights of marriage are granted to certain classifications of individuals and certain groups.

Those who are involved in domestic partnerships have signed agreements regarding their arrangements. Common law marriages also provide another alternative to traditional marriage.

Couples in common law marriages have lived together for a period of time and present themselves to others as being married. A common law married couple has never participated in a formal ceremony or obtained a marriage license.

Instead of getting a marriage license, the individuals who are living together intend to be married at some point. Once a common law marriage is established, it is as legally binding and valid as a legal, traditional marriage.

This means that the common law union has to be severed by a court if it comes to an end.

What Specifically Constitutes a Common Law Marriage?

In order for a common law marriage to occur, the state must recognize and permit common-law marriages. There are some states that fully recognize common-law marriages, and other states had formally recognized them and will currently recognize them so long as the couple has met all of the requirements before this type of marriage was banned.

Examples of states and their requirements for common-law marriage include:

  • Colorado (fully recognized);
  • Georgia (if created before 1997);
  • Idaho (if created before 1996);
  • Iowa;
  • Kansas;
  • Montana;
  • New Hampshire (for inheritance purposes exclusively);
  • Ohio (if created before 1991);
  • Oklahoma (if created before 1998);
  • Pennsylvania (if created before 2005);
  • Rhode Island;
  • South Carolina;
  • Texas (Texas refers to common law marriage as informal marriage); and
  • Utah.

How Can I Prove a Common Law Marriage?

For a common law marriage to be proven, the state must recognize and permit the arrangement. The individuals must have lived together for a specific amount of time, which varies by state.

The individuals in a common law marriage must both have the legal right to marry. There are also other requirements that may be in place, including:

  • The individuals have lived together for the required amount of time;
  • Both individuals have the legal right to marry;
  • Each individual in the relationship is eighteen or older, depending on the requirements of the state;
  • Each individual in the relationship must be of sound mind, as in, one individual is not coercing the other person
  • into the common law marriage; and
  • Each individual must not be married to another individual.

As noted above, the individuals must intend to be married and must present themselves to family and friends as being married. Examples of individuals presenting themselves as married include:

  • Taking the same last name;
  • Referring to each other as spouses in public; and
  • Having a joint bank account or credit card.

The intent to be married may also be expressed by actions such as wearing wedding rings or filing joint tax returns. Proving a common law marriage exists involves a court looking for documentation to show that the couple referred to each other as spouses and that they presented themselves to friends and family as being married.

Documented proof may be, for example, a written agreement signed by the parties stating they both intend to be married. Evidence may also include a signed affidavit that states that the couple is married.

This type of documentation is often used to obtain benefits, such as including one individual on another individual’s insurance plan. In order to prove a common law marriage, the court may require a variety of documents, including, but not limited to:

  • Joint tax returns;
  • Records of joint bank accounts;
  • Documentation proving joint ownership of the property;
  • A will or other type of estate document that refers to the partner as a spouse;
  • School records naming both parents as spouses; or
  • Any document showing one spouse using the surname of the other for themselves.

It is important to prove individuals were in a common-law marriage when one of the parties is attempting to:

  • Inherit property;
  • Claim insurance or social security benefits; or
  • Get a divorce.

Spouses who are terminating a common law marriage are required to go through the same divorce process as a traditionally married couple. The partner who is attempting to obtain property rights or the right to financial support will be the one required to prove the marriage was valid.

If either of the parties claims that a marriage did not exist, the claimant party has to prove that both parties intended to be married and that a common law marriage existed. This is the reason many states no longer recognize common-law marriages.

Every marriage, including traditional and common law marriages, is recognized to a certain degree in every state. This means that if a couple is in a common-law marriage and they move to a state that does not permit this type of marriage, they will still be married in their new state of residence.

After moving to the new state, the couple can prove they are married by signing an affidavit of marriage. This is a legally binding document that provides proof of an existing legal marriage between the two individuals who signed it.

How Do I End a Common Law Marriage?

As noted above, once a common law marriage has been established, it is as legally binding and valid as a traditional marriage. This means getting a divorce is needed to end a common-law marriage, just as with traditional marriage.

The procedures for divorce vary by state. However, the process typically begins when one of the spouses files for a divorce with the court in the county where they reside.

If an individual’s partner and presumptive spouse pass away before they have legally established the common law marriage, the individual will have to prove the marriage arrangement in order to inherit their property and receive the following:

  • Insurance benefits;
  • Social Security benefits; and
  • Other benefits.

There are several factors a court will examine to determine whether a common law marriage existed, including if the parties:

  • Resided together;
  • Intended to be married or presented themselves as married;
  • Signed contracts together, for example, to purchase a home or vehicle;
  • Filed joint tax returns or had a joint bank account;
  • Shared household expenses and duties; and
  • Had and raised any children together.

Do I Need an Attorney if I Want to End My Common Law Marriage?

If you have any issues, questions, or concerns related to common-law marriage or divorce in your state, a local divorce lawyer can answer your questions. Your lawyer can also advise you regarding the laws of your state that govern common-law marriage.

If you need to, your lawyer can help you prove your common-law marriage. In addition, your lawyer can help you file for divorce and represent you in court during the process if needed.

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