Many people believe that if they live together as a couple for a certain number of years—seven seems to be the magic number—they will be considered wedded through a common law marriage. But not every state actually recognizes common law marriages—in fact, most don’t. So before claiming you’re common law wedded, you’ll want to check your state statutes.
Getting hitched without the “I dos”
“A common law marriage is a legal distinction that some states recognize wherein two people, who never went through a formal marriage ceremony, are considered married in the eyes of the law, usually for residing together for a certain period of time,” says Kelsey Mulholland, attorney with the Ruvolo Law Group, LLC in Morristown, New Jersey, a state where common law marriages were discontinued in the 1930s.
Common law marriage is pretty much a relic of an earlier era. From colonial times through the Westward Expansion, folks living in the hinterlands had a hard time finding someone to officiate a wedding. Because society frowned on the cohabitation of unmarried couples in previous generations, common law marriage became an accepted practice—a way of being married without the benefit of an official ceremony.
Only 15 states still recognize common law marriages, and several of those impose restrictions: Alabama, Colorado, Georgia (if created prior to 1997), Idaho (if created before 1996), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if created prior to October 1991), Oklahoma, Pennsylvania (if created before September 2003), Rhode Island, South Carolina, Texas, and Utah. The District of Columbia also recognize common law marriage.
“Every state that recognizes common law marriages has its own requirements, but they usually require two people to hold themselves out to the public as a married couple and a cohabitation period of some length,” says Mulholland. So, if you live together for the request time, refer to one another as husband or wife, file joint tax returns, and tell other people that you’re married, you can be recognized as married by common law in states that permit such status.
If it seems simple, that’s because it is. Live together like spouses and let the outside world think you’re married, and, voilà, you are—if you live in a jurisdiction that recognizes common law marriage.
Divorce in a common law marriage
Though never officially wed, couples who are married by common law must approach divorce in the same way as any other married pair. And the same issues come into play as in any divorce. A common law couple’s divorce will be a traditional one with all the potentially acrimonious bells and whistles, including property division and alimony. “The parties have the same rights as those spouses who went through a ceremony,” says Mulholland.
Understandably, when children are part of the equation, the split can be especially volatile, replete with custody and child support issues. ”Either individual may seek to establish paternity or parenthood status,” says Stephen P. Levine, an attorney with Milligan, Beswick, Levine & Knox LLP in Redlands, California. “The parent can also seek to establish custody, visitation, and child support orders in the same fashion.”
If a couple has purchased property together, with both contributing to the cost and mortgage payments, a civil action may be brought to seek quiet title or reimbursement from the other party. “The same goes for the purchase of any other major asset worth seeking reimbursement or title for,” says Levine.
Complications of common law marriage
One of the trickier aspects of common law marriage arises when only one member of the couple claims that they’re married. As you might expect, this can lead to nasty disputes regarding child support and property distribution if the couple breaks up.
In such cases, the validity of the marriage will likely come down to testimony as to how the couple presented themselves to the world at large, and can rapidly devolve into a classic he-said/she-said. The most intimate of details—from who calls you daughter-in-law to the jewelry you wear on the ring finger of your left hand to the greetings written on your Christmas cards—are opened up for the court to consider when determining how to rule on children, assets, and more when the couple splits up.
Another complication of common law marriage concerns the legal rights of a spouse to make medical decisions. With no official documents to prove the marriage, a common law wife, for example, may be denied the right to make medical decisions for her incapacitated husband.
Finally, there is the question of what happens when a couple who are wedded by common law move to a state that doesn’t permit common law marriage. One view is that the “full faith and credit” clause of the US Constitution—the clause that requires each states to recognize the “public acts, records, and judicial proceedings of every other state” —guarantees that couple will be recognized as legally married in their new residence. That’s the theory, anyway, but a couple might have a hard time convincing officials in their new state that they were common law married in their old home.
Given the complications, and the fact that a divorce can be just as messy or messier, one has to wonder why two people who live together and present themselves as married don’t just mosey on down to the courthouse and make it official.