How Do Common Law Marriages Work?

Updated September 04, 2018

A common law marriage is similar to a regular marriage in that a couple lives together for a certain length of time and acts like they are married in front of family, friends, and strangers. The difference is, in a common law marriage, the couple has not participated in an official marriage ceremony, nor do they have a marriage license or certificate.

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Believe it or not, while many people believe that if they live together long enough, they will eventually be acknowledged as married, common law marriage is, more or less, a myth. And, in the states where it is legally acknowledged (15, plus the District of Columbia), couples need to be more active in achieving a common law marriage than simply living together for a while. This is good news for the commitment-phobe who may fear simply waking up one day and being married next to the person in his or her bed.

The concept of common law marriage came about in or around 1877, as this was a way for couples who lived in rural areas to become married when they lived so far out of the way that a justice of the peace could not travel to where they lived. Nowadays, with so many options available insofar as locations where people can get married, there is no need for common law marriage, and most states do not acknowledge this as legality.

The Specifics Of Common Law Marriage

For a couple to be acknowledged as living together in a common law marriage - in a state that legally acknowledges it, of course - the following requirements must apply:

  • The couple must be living together (though for how long depends on the state in which they live).
  • They must be legally allowed to marry.
  • They must both be at least 18 years of age (though this too varies by state).
  • They must both be of sound mind.
  • Neither of them can be married to someone else.
  • They must both intend to be married.

Having The "Capacity To Marry"

A person lacks the "capacity to marry" if he or she wants to get married but is already married to someone else. However, just because you cannot marry when you move in with someone, that does not mean that you can never be in a common law marriage with them. To have a "capacity to marry," the party who is married must either get a divorce or become a widow while living with his or her new partner.

States That Legally Acknowledge Common Law Marriage

The 15 states that legally acknowledge common law marriage as legitimate include:

  • Colorado
  • District of Columbia
  • Iowa
  • Kansas
  • Montana
  • Rhode Island
  • South Carolina
  • Texas (Texans call it an "informal marriage")
  • Utah

You may notice that this list falls far short of 15. That's because the following states once acknowledged common law marriage in the past, but now they no longer do. However, if couples living in these states had satisfied all the requirements before these states did away with common law marriage, then their unions will still, in most cases, be acknowledged as common law marriages:

  • Ohio (ended on October 10, 1991)
  • Idaho (ended on January 1, 1996)
  • Georgia (ended on January 1, 1997)
  • Oklahoma (ended on November 1, 1998)
  • Pennsylvania (ended on January 1, 2005)
  • New Hampshire (acknowledges common law marriage for inheritance purposes only)

Insofar as same-sex unions, while same-sex couples are legally allowed to marry in all 50 states, only the District of Columbia, Iowa, and Rhode Island acknowledge common law same-sex marriages. This is due to the law being written as a "man" and a "woman" who must be living together for a common law marriage to be acknowledged.

Living In A State That Does Not Acknowledge Common Law Marriage

Suppose you do not live in a state that legally acknowledges common law marriage, but you want to enjoy the benefits of being married without actually getting married. What do you do? Attorneys recommend that you approach the situation in much the same way that same-sex couples did before marriage was made legal for them: enter into a contract with your partner.

With a contract, the two of you can specify the rights you each would be entitled to if you were married to each other. For instance, if you share a house with your partner, you can note in the contract that in the event of your death, you would want your partner to have the home bequeathed to him or her.

Living In A State With Common Law Marriage

If you happen to live in one of the few states wherein common law marriage is acknowledged, it would be in the best interests of you and your partner to sign a statement establishing whether you intend to live together in a common law marriage. Else, the person you have lived with for the past 15 years, and who jokingly refers to you as his or her spouse, may be entitled to half of your stuff in the event you two eventually break up.

Couples who live together in states that acknowledge common law marriage are required to hold themselves out as if they were husband and wife to be acknowledged as such. They must do things like:

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  • File joint tax returns
  • Take their spouse's last name
  • Refer to each other in public as each other's spouse
  • Hold a joint checking account and joint credit cards

Over time, couples who engage in these kinds of activities can enjoy the benefits of being married without having the official marriage certificate legally declaring their union.

However, just as there are positives to a common law marriage, so too are there negatives. You also inherit all the same debts and struggles that married couples have to deal with. This is especially true if the relationship ends, as you will have to file for an actual divorce. So, while a common law marriage seems effortless at first, it may be easier just to rip off the band-aid and get married, as it can be less complicated for everyone involved in the long run.

Changing Your Last Name In A Common Law Marriage

Your name does not automatically change in a common law marriage, but then it does not automatically change once you are officially married either. To change your name, you must change it on all of your identifying documents, memberships, and accounts. Anyone can change his or her name for any reason, so long as they complete the necessary paperwork, pay the corresponding fees, and are not doing it for fraudulent purposes.

Most private companies will accept a name change based on the frequency with which you use it. So, if you no longer want to be Mrs. Smith, and you want to start calling yourself by your spouse's name - Mrs. Johnson - then simply referring to yourself all the time as "Karen Johnson" is enough for private entities to follow suit.

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However, nowadays, with the threat of identity theft and fraud being more prevalent than ever, fewer companies are willing to change your name on your accounts and memberships without receiving copies of proper legal documentation reflecting same, such as an amended driver's license or passport.

This is less of a concern in a traditional marriage, as the parties are provided with records that reference the new name. However, those in common law marriages must obtain a court order documenting the name change, which can then be shown to banks and other private entities as proof that you are who you say you are. To change your name on your driver's license, passport, and social security card, the government requires a court order instead of a marriage certificate.

Divorce And Common Law Marriage

As mentioned earlier, if you wish to end a relationship that has been legally acknowledged as a common law marriage, simply moving away from the residence is not enough. You must seek a normal divorce like any other married couple. Married couples tend to hire attorneys to handle their divorces, mainly because couples have difficulty agreeing on issues involving child support, custody, alimony, and the division of property.

If you and your partner's union was acknowledged as a common law marriage, but you then moved to a state that does not legally acknowledge the union as such, you will still need to seek a regular divorce. This is because all 50 states acknowledge marriages from other states, including common law marriages. Even if you move to another state, you are still considered married, and you must seek a legal divorce if you and your partner decide to end the relationship.

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Death And Common Law Marriage

This is where it may be easier to get married simply than to put all of your efforts into proving your common law marriage. If a spouse dies in a common law marriage, then it is necessary for the surviving spouse to prove the marriage to inherit the deceased spouse's property, as well as to receive benefits from the deceased spouse's insurance, pension, and Social Security.

Are you and your long-term partner living together, but are not married? Do you have questions about common law marriage that were not answered by this article? Contact one of our counselors, who are available 24/7 to assist you with any and all questions you may have to pertain to relationships and the law.

Sources:

https://www.legalzoom.com/articles/the-common-law-marriage-myth

http://family.findlaw.com/marriage/common-law-marriage.html


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