he legal term, “marriage” refers to a specific legal status granted to a couple by a state’s 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. Marriage provides the couple with several unique rights, protections, and obligations, at both the state and federal levels. Some examples of such benefits include tax benefits, as well as property ownership benefits.
A common law marriage is an alternative to a traditional marriage arrangement. Under a common law marriage arrangement, the couple lives together for a period of time and presents themselves as being married to each other. However, in common law marriages the couple has never had a formal marriage ceremony, nor have they obtained and signed a marriage license. The couple living together may intend to be married to each other at some point.
One common law marriage scenario that occurs frequently is when there is no capacity to be married. What this means is although the two people are in a relationship and would like to be married to each other, there is some legal reason as to why one party cannot.
An example of this would be when one party is going through the divorce process. They legally cannot marry their new partner until the divorce from their former partner has been finalized, but their state may recognize their arrangement as a common law marriage.
Once a common law marriage has been established, it is just as legally valid as a traditional marriage. It is also legally binding, as a traditional marriage arrangement is. The union will need to be severed by a court when it comes to an end.
What States Allow Common Law Marriages?
Few states recognize the validity of a common law marriage. However, states that do allow the arrangement treat the marriage the same as those who are legally married. This is an important note because it influences inheritance rights as well as property distribution should the common law marriage come to an end. This fact also influences claiming insurance and other benefits, and obtaining financial support if the relationship ends, such as spousal support or child support.
Some states fully allow and recognize common law marriages, while others have formerly recognized the arrangement and will currently recognize the arrangement if the couple met all of the requirements before such marriages were banned. Below is a list of states that allow common law marriages, or recognize past arrangements, but it is important to consult with a local attorney to determine if your state allows the marriage:
- Colorado, fully recognized;
- Georgia, if before 1997;
- Idaho, if before 1996;
- Iowa, Kansas, and Montana;
- New Hampshire, exclusively for inheritance purposes;
- Ohio, if before 1991;
- Oklahoma, if before 1998;
- Pennsylvania, if before 2005;
- Rhode Island, South Carolina, and Utah; and
- Texas, although it is referred to as an informal marriage.
New Hampshire’s allowance for inheritance purposes is to ensure that should a non married spouse, who would otherwise be considered a legal spouse, would inherit their partner’s estate if they died unexpectedly and did not create a provision for their living partner.
How Can I Prove a Common Law Marriage?
First and foremost, the state must recognize and allow the arrangement. A couple living together who intends to be married at a later date can become common law spouses if they meet certain requirements. These requirements include but may not be limited to:
- Having lived together for a specified amount of time;
- Both partners have the legal right to marry;
- Each partner is of legal age, generally eighteen or older;
- Each partner is of sound mind and not being coerced into the arrangement; and
- No partner may be married to another person.
Proving a common law marriage involves the court looking for documentation to show that the couple referred to each other as spouses, and that the couple presented themselves to friends and family as being married to each other. Documented proof could include a written agreement signed by both parties that states they both intend to be a married couple. Evidence of a common law marriage could also include a signed affidavit stating that the couple is married. Such documentation is generally used to obtain benefits, or include one partner in another’s insurance plan.
To prove a common law marriage, the court may require a variety of documentation including but not limited to:
- Joint tax returns;
- Records of joint bank accounts;
- Documentation proving joint ownership of property;
- A will or other estate document referring to the partner as a spouse;
- School records naming both parents as spouses; and/or
- Any document showing one spouse using the surname of the other for themselves.
It is important to prove a common law marriage when inheriting property, claiming insurance or social security benefits, or getting a divorce. Spouses terminating a common law marriage must go through the same divorce process as a traditionally married couple.
However, the partner who is trying to obtain property rights or the right to financial support will need to prove that the marriage was valid. If either party claims that there was no marriage, the claimant party must prove that both parties intended to be married and a common law marriage existed. This is why many states no longer allow common law marriages.
Do I Need an Attorney to Prove or Dispute a Common Law Marriage?
If you are being asked to prove or dispute a common law marriage for any reason, a skilled and knowledgeable family law attorney would be beneficial to your case. An experienced family law attorney can help you understand your state’s laws regarding common law marriages, and assist you in gathering evidence and documentation to support or defend your position. Additionally, the attorney can represent you in court as needed.