Common Law Marriage: Separating Fact From Fiction

By Sarah Li Cain | | Dating
Common Law Marriage: Separating Fact From Fiction
Lifestyle/Shutterstock

You and your partner have been together for what seems like forever. Since moving in together, you’ve learned what makes each other tick, like how you hate the way she puts the dishes away (it’s since become your chore) or you both love meal planning. Naturally, the next step is marriage, right? Well, you might be surprised to know that you may already be married thanks to common law marriage.

Though only recognized in a few states, common law marriage still exists and you may not need to go through a formal “I do” ceremony to be married. Whether you don’t want to go through a long, drawn out and expensive wedding or you’re not interested in making such a commitment, it’s important to find out whether you’re considered married in the eyes of the law.

Here’s a quick look at what common law marriage is, some of the myths, and states where it’s still available.

What is a common law marriage?

Not to be confused with a marriage that involves a civil union, in a common law marriage the legal system recognizes a couple as the equivalent of being married whether they hold a marriage license or went through a religious or civil ceremony. The lack of documentation means it’s unlikely to appear in online people search results, but it can carry just as much legal weight all the same.

David Reischer, an attorney at Reischer & Reischer LLP and founder of LegalAdvice.com, said the legal rules can differ depending on where you’re located.

“Some of these rules can involve property interests of unmarried couples,” he said. “Any state that recognizes domestic partnerships will govern laws like who holds the ownership of assets or how it should be divided if the two parties separate.”

In other words, there aren’t hard and fast rules as to what happens in a common law marriage and how it’s recognized. There are, however, a few rules that you and your partner need to meet to be considered common law.

These include:

  • You both need to be at least 18 years old.
  • You have to live together in a state that recognizes common law marriage.
  • You must have lived together for a long period of time; exact requirements differ by state.
  • Both of you need to be of sound mind.
  • Neither person can be married to anyone else.
  • You intend to get married.
  • Both of you hold yourselves as a couple—this includes introducing yourselves to others as a married couple, using the same last name, having joint financial accounts and even filing joint tax returns.

Wait, what is common law?

Common law originated in England and most of its colonies used this system when creating their own laws. Generally, it means that once a legal issue is decided upon within a jurisdiction, then that ruling will apply to subsequent proceedings. In other words, even if a law pertaining to an action isn’t explicitly written in the relevant statute, previous rulings on the subject tend to be treated as precedent when sufficiently similar cases come before the court.

In the U.S., common law is usually left to the states to decide—that’s why regulations like common law marriage differ depending on location. It’s also important to note that just because proceedings are one way in one state, doesn’t mean that they will be recognized, transfer or apply to other states.

Common law marriage myths

Contrary to popular belief, it takes more than living together for a while to make you married in the eyes of the law.

Here are some popular myths about common law marriage. It’s unclear where these originated, but their existence underscores the rarity and quirkiness of common law marriage relative to conventional marriage:

  • A couple must adopt a child if they have one together. If you and your partner have a biological child, you have the same obligations as all other parents. You can choose how to raise the child and give either the father, mother’s last name or even a hyphenated version of the two.
  • Property purchased belongs to both partners. When you or your partner purchase a property individually, it doesn’t mean the owner needs to share proceeds if you separate. The rightful owner also may also sell or mortgage the property without the other’s consent. Reischer recommended that you seek the help of an attorney in your state since different locations may have distinct rules. “A qualified attorney can help draft documents like a living arrangement agreement so it’s clear how assets can be divided in case you split up,” he said.
  • Assets are always considered separate. This depends on the state you live in, particularly so if you have co-mingled your assets or debts. That’s because the law might assume that you have intended for your assets (whether it’s a bank or investment account) to be held jointly. Here, you may have to split your assets 50/50 in the event of a breakup.
  • All assets go to the surviving partner if their common law spouse becomes disabled or passes away. It’s up to the surviving spouse to prove that the partnership is legal in the eyes of the law. Also, it depends on your partner’s will and whether their family members have any say in making decisions pertaining to their medical needs or any of their assets.
  • Divorce for common law couples don’t exist. You may require a formal, legal divorce if you decide to part ways.

Where can I have a common law spouse?

Currently, only nine states recognize common law relationships (special conditions noted):

  • District of Columbia.
  • Colorado: Only if couples contracted on or after September 1st, 2006.
  • Iowa: Only to help provide support for dependents.
  • Kansas.
  • Montana: Cannot be invalidated or prohibited by the state’s marriage chapter.
  • New Hampshire: Only recognized for inheritance purposes only.
  • Rhode Island.
  • South Carolina: There aren’t any specific laws pertaining to common law marriage and allows for marriage without a valid license.
  • Texas.
  • Utah.

While these states no longer recognize common law relationships, they’ve grandfathered those who meet previous requirements by a certain date:

  • Alabama (by January 1, 2017).
  • Georgia (by January 1, 1997).
  • Idaho (by January 1, 1996).
  • Ohio (by October 10, 1991.
  • Oklahoma (by November 1st, 1998).
  • Pennsylvania (by January 1, 2005).

Common law marriage is anything but common

Common law marriage is getting less common as fewer states recognize this form of partnership. Even still, you need to meet certain requirements such as both of you telling others you’re a couple, are of sound mind and aren’t currently married. If your state recognizes this type of partnership (even if it’s grandfathered in), check to see if those rules apply to you so that you’re aware of your legal rights.

Disclaimer: The above is solely intended for informational purposes and in no way constitutes legal advice or specific recommendations.