Attorney At Law

Common Law Marriage: Rights and Responsibilities

By James Parker
/
August 23, 2021

Marriages are typically announced and performed with a great deal of pomp and circumstance. Some couples, however, prefer not to have their marriage be such an official process. A common law marriage can be an alternative to traditional wedding rituals.

Common law marriage comes with some myths. First, no length of time can automatically declare a couple to be in a common law marriage. Instead, a couple can be considered to be in a common law marriage when they hold themselves out as a married couple without purchasing a marriage license or having their wedding officiated by a ceremony. 

Second, not all states accept common law marriages. The states that still recognize common law marriages up to the present day are:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • Oklahoma
  • Rhode Island
  • Texas 
  • Utah

Some states used to accept common law marriages, but now have a cutoff point beyond which no new common law marriages are accepted. Those states and their cutoff dates are:

  • South Carolina (July 24, 2019)
  • Alabama (January 1, 2017)
  • Pennsylvania (January 1, 2005)
  • Georgia (January 1, 1997)
  • Idaho (January 1, 1996)
  • Ohio (October 10, 1991)
  • Florida (January 1, 1968)
  • Indiana (January 1, 1958)

If a couple desires to enter into a common law marriage but does not live in a state that accepts them, they could temporarily move to a state that does and enter into the marriage there. Since all 50 states acknowledge marriages formed in other states, a case could be made that the common law marriage formed in another state is valid in the original state. The validity of this method may vary from state to state and it is recommended that any couples considering this strategy first consult with a divorce & family law attorney.

When determining whether their common law marriage is valid, both the couple’s actions and their words will be examined. Some behaviors that may indicate that a common law marriage is legitimate include:

  • Filing joint income tax returns
  • Opening up a joint bank account
  • Signing a document stating that the couple considers themselves to be married
  • Taking one partner’s last name or hyphenating both names
  • Telling the community they are a married couple
  • Using the term "spouse," “husband,” or “wife” when referring to each other in public
  • Wearing wedding rings

The couple must still legally be able to marry in the state they intend to form a common law marriage in. This means that neither prospective spouse can be married to another person, must meet the legal age requirements to marry, and must be of sound mind when they marry.

Once a couple enters into a common law marriage, they will have all the same rights and duties as any other couple. To exit this arrangement, they will need to get a divorce despite never having obtained a marriage license. 

Additionally, there may be a point where a marriage is presumed in a common law marriage state. This can include if the couple cohabitates for a significant amount of time, has children, or fulfills some other criteria that the courts or state authorities may consider to meet the criteria of common law marriage. 

To prevent this presumption of marriage, couples not wishing to enter into a common law marriage can state that fact in a notarized document. In this document, both members of the relationship can state that although they have been and plan to continue living together, they do so as two free, independent people and neither of them has ever intended to enter into any form of marriage, common law or otherwise. This can be presented in court as evidence that a common law marriage has not been formed.

If you and your partner are looking to enter into a common law marriage, or are seeking to avoid being classified as a married couple in a common law marriage state, you will need the help of an experienced divorce & family law attorney. A divorce & family law attorney can help you and your partner navigate the intricacies of your state’s marriage laws to achieve your desired outcome. The best place to find divorce & family law attorneys is Attorney at Law.

At AAL, our nationwide network of attorneys and law firms matches you with an experienced divorce & family law attorney to help with your case. Our partners have the resources, legal expertise, and experience to achieve the best outcome for you and your partner. In addition to distinctive case records, our partners also have unparalleled skill in client care. 

Don’t wait. Contact AAL today for a free, no obligation consultation and assert your marital rights.

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