The term marriage refers to a specific legal status given to a couple by a state’s government. Marriage provides the couple with several unique rights, protections, and obligations, both at the state and federal levels.
Some examples of benefits include tax benefits and property ownership benefits. A civil union is another type of legal status similar to marriage. Civil unions also provide many of the same protections as marriages, but only at the state level, not the federal level.
For example federal protections such as specific tax breaks and social security benefits, are not available to those who are joined in a civil union. Yet another legal status is a domestic partnership, in which some of the rights of marriage are granted to certain groups and classifications of people. Those involved in a domestic partnership have a signed agreement regarding their arrangement.
A common law marriage is another alternative to traditional marriage. Essentially, a couple who common law married has lived together for a period of time and presents themselves as being married. However, the couple has never gone through a formal ceremony, nor have they obtained a marriage license. Instead of obtaining a marriage license, the couple living together intends to be married at some point.
Common law marriages can also occur when there is no capacity to be married. An example of this would be if a couple moves in together while one person is involved in a divorce, and the couple lives in a common law marriage state.
The couple cannot marry each other until the divorce is final, but the state may recognize their arrangement as a common law marriage. Once a common law marriage has been established, it is just as valid and legally binding as a traditional, legal marriage. This means the union must be severed by a court when it comes to an end.
First and foremost, the state must recognize and allow common law marriages. Currently, only some states and the District of Columbia allow common law marriages. Some states fully recognize common law marriage, while others have formerly recognized them and will currently recognize them if the couple has met all the requirements before such marriages were banned. Some states and their requirements include:
- Colorado (fully recognized);
- Georgia (if created before 1997);
- Idaho (if created before 1996);
- 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 (note: Texas refers to common law marriages as “informal marriage”); and
A couple living together who intends to be married can become common law spouses. However, that is not the only requirement. You must have lived together for a specific amount of time which varies by state, and you both must have the legal right to marry. Other requirements include:
- Each person in the relationship is aged eighteen or older (depending on the state);
- Each person in the relationship must be of sound mind (as in, one person is not coercing the other person into the common law marriage); and
- Each person must not be married to another person.
As previously mentioned, the couple must intend to be married as well as present themselves to friends and family as being married. Some examples of this could include taking the same last night, referring to each other as in public as spouse, and having a joint bank account or credit cards. Intent to be married may also be expressed by filing joint tax returns and wearing wedding rings.
As mentioned above, once a common law marriage is established, it is just as legally binding and valid as a traditional marriage. As such, a divorce is necessary to end a common law marriage. Obtaining a divorce from a common law marriage is the exact same procedure as a traditional marriage.
Divorce procedures vary from state to state, but the process generally begins when one spouse files for divorce with the court in the county in which they currently reside. However, if your partner and presumptive spouse dies before you have legally established your common law marriage, you will need to prove your marriage arrangement in order to inherit their property and receive insurance benefits, social security benefits, etc.
In order to determine whether a common law marriage existed, a court may look at:
- If the couple lived together;
- If the couple intended to be married or presented themselves as such;
- If the couple signed contracts together, such as to purchase a home or vehicle;
- If the couple filed joint tax returns or had a joint bank account;
- If the couple shared household duties and expenses; and
- If the couple had and raised children together.
All marriages, whether common law or civil, are recognized by every state to some degree. Thus, if you are common law married and move to a state that does not allow such an arrangement, you are still married in that new state.
This is because your marriage was valid in the state in which it occurred. You can prove that you are married when you move to a new state by signing an affidavit of marriage, which is a legally binding document providing proof of an existing legal marriage between two people.
A skilled and knowledgeable divorce lawyer can assist you with any questions you may have regarding common law marriage and divorce. An experienced attorney can also educate you on your state’s specific laws regarding the matter, and assist in proving your marriage. Additionally, the attorney can help you file for divorce, and represent you in court, as necessary.