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What is Common Law Marriage?

It is more and more common for couples to live together without getting married. According to a Pew Research study, 59 percent of American adults have cohabitated with a partner at some point (greater than the percent who have ever been married). Many people have heard of common law marriage and wonder if their unmarried relationship might qualify as a common law marriage.

Defining Common Law Marriage

Common law marriage originated in English law. Today a common law marriage occurs when two people:

  • Are both unmarried
  • Are both of legal age and capacity to be married
  • Live together for a certain number of years (usually seven to ten years) and
  • Hold themselves out as a married couple (such as by referring to the other as “my wife” or “my husband” or using the same last name)

However, merely doing those things does not automatically mean you are in a common law marriage. A common law marriage is not legally recognized until a judge determines it exists. Until that point, the marriage is not technically recognized as legal.

Where is Common Law Marriage Legal?

Most states do not recognize common law marriage. Those that currently allow it are:

  • Colorado
  • District of Columbia
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • South Carolina
  • Texas
  • Utah

Full Faith and Credit Recognition

Although none of the other states recognize common law marriages formed within their state, they will recognize a common law marriage that was created in another state, if that originating state has legally recognized the marriage as legal. So, for example, a couple lived in a common law marriage in Utah, Utah courts recognized them as legally married. They then moved to New York and tried to get health insurance coverage for one of the spouses through the other’s employer, which only offers benefits to married couples. Because Utah recognized the marriage and gave it legal status, the marriage is considered to be a legal marriage in New York. This same principle applies in any state because all states give full faith and credit to a marriage recognized as legal in another jurisdiction.

Can You Get a Divorce for a Common Law Marriage?

If you live in a state where common law marriage is legal and you have met the state’s requirements for a common law marriage, you are eligible to get a divorce. However, the court must first recognize the marriage as legal.

Suppose you fulfill the common law marriage requirement in one state and move to another where common law marriage is recognized and seek a divorce there. In that case, the court will first determine if your marriage qualifies as a legal marriage in the state where the common law marriage was formed. If so, then a divorce can proceed.

What Happens if Your Marriage is Not Recognized?

If you have been cohabitating with a partner and break up but do not qualify for common law marriage, you are treated as an unmarried couple. If you have children, you can go to family court to resolve child custody and child support. If there are domestic violence issues, these can also be handled in family court.

To help untangle your co-mingled finances, you should work with an attorney or mediator if you cannot resolve them on your own. If agreements can’t be reached, a general civil court could be used to determine ownership issues.

Palimony

In general, if a couple is not married, there is no right for either spouse to seek spousal or partner support after the relationship ends. In some rare situations, “palimony” can be ordered. This form of support for a cohabitating partner was created by the famous Marvin v. Marvin case in California.

When the cohabitating partners have an implied contract that the moneyed partner will support the non-moneyed partner after cohabitation ends, a court can order ongoing support after they break up. Other states will order support only if there is a written agreement that support is agreed to by the partners.

How to Protect Yourself

No matter where you live, it is best to have the legal obligations for your relationship clearly agreed upon and spelled out. A prenuptial agreement, postnuptial agreement, or cohabitation agreement will allow you and your spouse or partner to designate what will happen to your assets should your relationship end. It can also establish terms for spousal or partner financial support after the end of the relationship. This type of agreement establishes the parameters for your joint and separate assets and debts and allows you to make a personalized plan for what will happen to them if you part ways.

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Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

For media inquiries or speaking engagements: [hidden email]