The term “common law marriage” is a legal term that describes a couple that holds itself out to the world as being married. The couple does so without ever having the marriage formalized by a license, or religious or civil ceremony. Not all states recognize common law marriage as legal. In the states that recognize the arrangement as legal, each partner has the same benefits and responsibilities as do married couples.
For a common law marriage to exist, certain elements of a statutory marriage must be present. The parties must freely consent to the arrangement; they must be currently unmarried, of legal consent age; and of sound mind. Minors must obtain adult consent.
Which States Use Common Law Marriage?
Only a small handful of states recognize common law marriage. Currently, the following states recognize common law marriage:
- Colorado. Under Colorado law, a common law marriage is recognized if, at the time the common law marriage is entered into, each party is 18 or older, and the marriage is not otherwise prohibited by Colorado law.
- Iowa. Iowa perits common law marriage for the purposes of child support law. Under Iowa law, a child whose parents hold themselves out as spouses by reason of common law marriage, is deemed to be a legitimate child. This rule applies provided that the marriage is not subsequently dissolved prior to the death of either parent. Since the child is deemed legitimate, the family law rules governing legitimate children, child support, and child custody, apply to the child. In situations not involving child support, an Iowa court will find that a marriage is a valid common law marriage if a party shows, by clear and convincing evidence:
- A present intent and agreement to be married;
- Continuous cohabitation (living together as if the parties are spouses); and
- The presence of a general and substantial declaration that the parties are spouses.This consists of “holding out” or “representing,” for public purposes, that the parties are married.
- Kansas. In Kansas, common law marriage is recognized. Common law marriage in Kansas occurs when two people agree to marriage, without having the marriage formalized. The state will recognize the marriage if the couple considers itself married, and publicly holds itself out as married. a marriage by agreement of the two persons without any formal ceremony or license.
- Montana. Montana recognizes common law marriage. For a couple to be regarded as being in a common law marriage, each spouse must agree that they are married. Both spouses must be “competent” to marry. That is, each spouse may not have a condition that would otherwise disqualify them for marriage, such as minority or incapacity. The coip;e must also hold itself out to the world as being married.
- New Hampshire. New Hampshire permits common law marriage. The couple is required to cohabitate and acknowledge each other as spouses,for at least three years.
- South Carolina. The South Carolina Supreme Court abolished common law marriage in July of 2019. The Court ruled that common law marriages entered into before the court’s decision were still valid.
- Texas. Texas recognizes common law marriage. Under Texas law, for a common law marriage to exist, a couple must demonstrate that the individuals agreed to be married; subsequently resided together in Texas as husband and wife; and represented to others that they were married.
- Utah. Utah has a variation of common law marriage. In Utah,a couple that has lived together and treated each other as spouses may file a petition with the court to recognize their past relationship as a marriage. The petition is known as a “petition to recognize a relationship as a marriage.” If a judge grants the petition, the couple is deemed legally married.
Do States That Prohibit Common Law Marriage Recognize Out-of-State Common Law Marriages?
Under the Full Faith and Credit Clause of the United States constitution, However, all 50 states must recognize common law marriage validly created in other states that allow them. The Full Faith and Credit Clause requires states to give effect to other states’ laws and court decisions The Full Faith and Credit Clause generally applies to common law marriage. The effect of this is that a marriage recognized as valid in a common law marriage state, will be deemed a valid marriage by a state without common law marriage.
When a couple from a common law marriage state moves to a state that does not permit common law marriage, the “second” state will regard the common law marriage as valid under its own laws. The Full Faith and Credit Clause applies here to foster respect among the states. The clause also applies to promote stability in the law. If a state to which a common law marriage couple moved refused to recognize the mariage, the couple would be deemed unmarried in the new state. This means that a person will not suddenly find themselves “unmarried” simply by moving to a state that does not recognize common law marriage.
States to which a couple moves may require the couple to demonstrate that the common law marriage was validly entered into in the state they moved from. This means that the new state may seek proof that the couple met its particular state’s requirements for common law marriage. If a new state is not satisfied that the common law marriage is valid, the new state may refuse to accept the common law marriage as valid.
Can I Claim My Common Law Spouse as a Dependent on My Tax Return?
Some people seek to claim their common law spouse as a dependent on their federal tax return. Claiming of the common law spouse as a dependent entitles an individual to claim a dependency exemption exemption. A dependency exemption permits a taxpayer to deduct money from counting as income. Currently, the amount of the exemption that can be deducted is the greater of either (2) $1,100 or (2) the sum of $350, added to the individual’s earned income. The deduction claimed cannot exceed the regular standard deduction amount.
To be able to finale as single and claim the common law spouse as a dependent, an individual must demonstrate the following:
- No other person has claimed the common law spouse as a dependent on their own tax return;
- The common law spouse must be a United States citizen, national, or resident alien. Residents of Canada or Mexico may also qualify;
- Your common law spouse must have lived with you for the entire tax year for which you are claiming the deduction;
- Your partner’s gross income for the entire tax year cannot exceed $4,300;
- You must have provided more than half of your partner’s financial support during the tax year for which the exemption is sought. Housing,food, clothing, medical expenses, and educational expenses all count as support.
Do I Need an Attorney?
You may have questions regarding common law marriage. These may include what constitutes a common law marriage, and what the tax and child-rearing consequences are. A family law attorney or a tax attorney near you can answer these questions.
The attorney can review the facts of your situation and advise you as to how the law applies. They can also represent you in court proceedings in which there is an issue as to whether a common law marriage is present.