Proving a Common Law Marriage

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 What Is Marriage?

Marriage is a certain type of legal status that is granted to a couple by their state government. It legally binds two parties together, much like a contract, and is a legal union between the two parties, utilizing a license and a ceremony to create the marriage contract.

However, there may be some exceptions; traditional marriage is recognized in every state in the United States and every nation around the world, regardless of where it was issued.

Marriage provides the couple with several unique rights, protections, and obligations at both the state and federal levels. This includes benefits surrounding:

  1. Lower-income taxes through a marital deduction
  2. Ease of joint property ownership
  3. Right to next-of-kin benefits with regard to your spouse’s healthcare
  4. Family leave benefits
  5. Tax-free inheritance
  6. The right to the other party‘s social security benefits if they predecease you
  7. The right to IRA funds if they predecease you
  8. The right to claim alimony

What is Common Law Marriage?

We are all familiar with a traditional marriage that starts with a state license and a ceremony. There is also another little-known type of marriage called “common law” marriage. This legal framework allows spouses to be regarded as married even though their union has never been recognized in a legal ceremony.

In other words, you and your spouse are considered a married pair for inheritance and other potential legal concerns without going through the formalities of getting a marriage license. Once a common law marriage has been established, it is considered just as valid and legally binding as a traditional marriage.

In a common law marriage arrangement, the couple lives together for a required period (how long varies by state) and presents themselves to the world as being married to each other. They often do so by owning a house, a car, or other property together; by referring to each other as husband and wife; by instructing their friends and family members that they are married; and, in general, by responding to questions and life circumstances as if they were married in the traditional sense.

The couple may intend to be married to each other at some point; in some states, that is a requirement for obtaining status as common-law spouses.

One common law marriage scenario occurs when there is no capacity to be legally married. There is some legal reason why one party cannot legally marry. An example would be when one party is already married but is going through a divorce. The pair cannot legally marry each other until the divorce has been finalized, but their state may recognize their arrangement as a common-law marriage.

Another example is if two cousins want to marry each other. In most states, they cannot legally do so. If they do marry in the standard way, their marriage is “voidable,” meaning it can be ended without the necessity of divorce (the couple says they are divorced and their marriage has ended; that action made it true). A voidable marriage can be ended when the couple decides to end it, so they have a valid marriage until and unless they do.

Once a common law marriage has been established, it is just as legally valid as a traditional marriage.

A common law marriage must meet many prerequisites in the majority of states to be recognized:

  1. Both must be mentally stable
  2. In some states, a couple is required by law to cohabitate for some time
  3. In most states, both must be 18 years of age or older
  4. Neither of them may be wed to someone else already
  5. Both parties must want to get married to each other (there is no fraud or coercion)
  6. The couple must present themselves to the general public as married

Which States Allow Common Law Marriages?

There are three groups into which states fall concerning common-law marriage:

  • They do not recognize it. This is true of most states
  • They fully recognize it. These are:
    • Colorado
    • Iowa
    • Kansas
    • Montana
    • Rhode Island
    • South Carolina
    • Utah
    • Texas, although it is referred to as an “informal marriage”
    • Washington, D.C.
  • They recognize only some common law marriages:
    • New Hampshire does not recognize common law marriage, with one exception: common law marriage is recognized exclusively for inheritance purposes. This protects unmarried life partners if they pass away without leaving provisions for the other person in a will. For purposes of probate, they will be treated as married
    • States that do not recognize common law marriage now but recognized it in the past will currently recognize the arrangement if the couple met all of the requirements before such marriages were banned. It is important to consult with a local attorney to determine if your state allows the marriage.
      • Georgia, if before 1997
      • Idaho, if before 1996
      • Ohio, if before 1991
      • Oklahoma, if before 1998
      • Pennsylvania, if before 2005

How Can I Prove a Common Law Marriage?

Proving a common law marriage involves establishing to the court that you treat each other as spouses and present yourselves to friends and family as being married to each other. Documented proof could include a written agreement signed by both parties stating that you both intend to be married.

Evidence of a common law marriage could also include a signed affidavit stating that you are married. Such documentation is generally used to obtain benefits or includes one partner in another’s insurance plan.

To prove a common law marriage exists, the court may accept a variety of documentation, including but not limited to:

  • Evidence that there was a ceremony that turned out to be invalid because either you did not have a license to marry or the officiant was not licensed
  • Joint tax returns
  • Records of joint bank account
  • Documentation proving joint ownership of property
  • A will or other estate document referring to each other as spouses
  • School records naming both parents as spouses
  • Any document showing one spouse using the surname of the other for themselves

Why would the couple be in court? To get a decree stating that they are married. This decrease will weigh on a marriage certificate. This is important because, in many instances (for example):

  • To file taxes together and to legally claim tax benefits based on being married
  • To inherit property
  • To claim insurance or social security benefits
  • To attend the bedside of their ill partner
  • To obtain alimony in a divorce

A couple must prove they are married. Rather than wait for some life event to cause them to have to prove it, they ask the court for a decree in advance.

Spouses terminating a common law marriage must undergo the same divorce process as a traditionally married couple. Any partner trying to obtain property rights or the right to financial support will need to prove that the marriage was valid.

Do I Need an Attorney to Prove or Dispute a Common Law Marriage?

If you are being asked to prove or disprove a common-law marriage for any reason, having a skilled and knowledgeable family lawyer by your side would be important.

An experienced family law attorney can help you understand your state’s laws regarding common-law marriages and guide you in gathering evidence and documentation to support or defend your position. Additionally, the attorney can represent you in court as needed.


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