Marriage is when there is a legal union between two people involving a license and a ceremony. Once you are married there are certain legal rights and obligations that are created between you and your partner.
A common law marriage, on the other hand, is a union that does not involve a license and ceremony. Usually it is when two people have lived together as if they were spouses for a long time, but did not actually obtain a license or have a ceremony to legalize their union.
Only a minority of states recognize the validity of a common law marriage, but in the states that do, those who are common law married are treated the same as those who are legally married. This is important for inheritance reasons, claiming insurance or other benefits, and obtaining financial support once the relationship is over.
Presently only about 15 states and the District of Columbia allow common law marriages. No state recognizes same-sex common law marriage. The states that allow common law marriages are:
- District of Columbia;
- Georgia (for any common law marriages formed prior to 1/1/97);
- Idaho (for any common law marriages formed prior to 1/1/96);
- New Hampshire (for inheritance purposes only);
- Ohio (for any common law marriages formed prior to 10/10/91);
- Rhode Island;
- South Carolina;
- Texas; and
If your state does not recognize common law marriage and you want to be able to establish that a common law marriage existed, you have to prove that you lived in a common law marriage state at the time of the formation of the common law marriage and provide evidence.
New Hampshire’s allowance for “inheritance purposes” is to make sure that in the event a non-married spouse, who would otherwise be considered the legal husband/wife, would inherit if the other spouse died unexpectedly and did not create a provision for the living spouse.
A man and woman who live together and intend to be married can become common law spouses. Intent to be married can be shown by the couple simply by acting like they were married. This means it excludes same-sex couples, not necessarily due to discrimination but simply because many states are phasing out legally recognized common law marriages. Such acts include:
- Filing joint tax returns;
- Using words like husband and wife;
- Using the same last name;
- Wearing wedding rings;
- Credit card or bank accounts that have both names associated with account; and/or
- Deeds showing that the property is held by joint ownership.
In order to prove a common law marriage the courts will mainly look to see if there is any documentation to show that that the couple referred to each other as their spouse. This may be a signed written agreement by both parties stating that they intend to be a married couple or a signed affidavit stating that the couple is married.
These documents are usually used during the course of the relationship for legal purposes such as obtaining benefits or including one partner onto the other partner’s insurance plan. Additionally, the court might require a variety of supporting documents such as:
- Joint tax returns;
- Records of joint bank accounts;
- Documents showing joint ownership of a property;
- A will or other documents referring to the partner as a spouse;
- Have a mutual agreement between spouses;
- Have an actual permanent relationship and hold yourself out as husband and wife;
- School records that show both spouses as parents; and/or
- Any documents that shows one spouse using the surname of the other.
Keep in mind that the type of evidence that the court will require varies state by state and depending on what state you are in, the court may require different forms of proof.
Additionally, there may be a time limit in place for how you long you have to prove a common law marriage in order to claim certain benefits. If your partner dies or if your relationship ends, then there is a limited window in some states to make your claim.
There are many instances that proving that common law marriage exists is very important. These instances include inheriting property, claiming insurance or other benefits such as social security, or getting a divorce.
Spouses ending a common law marriage must go through legal divorce proceedings, just like any other married couple. However, unlike a spouse in a certified marriage, a partner who is trying to get property rights or a right to financial support on the basis of a common law marriage will first have to demonstrate that the marriage was valid and there actually was a common law marriage.
If either party claims that there was no marriage, then the claimant party must prove with clear evidence that both partners intended to be married and a common law marriage existed.
The difficulty in proving a common law marriage is the main reason why many states are no longer acknowledging common law marriage. Especially in states where spouses share community property and have a right to “half of everything”.
This means while your marriage might be a valid common law marriage in your home state, if you move to another state without common law marriage, it is possible that your marriage will not be recognized. Be sure to check the state law of your new home state, and be prepared to make necessary legal arrangements if you move.
Common law marriage is a unique legal concept and if you and a partner meet the requirements in your state, it could have a significant impact on the disposition of your property. As only a minority of states allow common law marriage and because it might be difficult to prove in certain cases, it is best to consult with an attorney to figure out your options.
An experienced family law attorney will be able to tell you if you are actually common law married and will be able to inform you of the benefits and consequences that entails.