What You Need to Know About Common Law Marriage

Common Law Marriage

PHOTO BY ALI BAILEY 

There are misconceptions about what constitutes a common law marriage. The most prevalent assumption is that if you live together for a certain number of years, you automatically have a common law marriage. That isn't true, and there are other requirements to meet as well.

What Is a Common Law Marriage?

A common law marriage is a legal marriage between two people (same-sex or heterosexual) who have not held a marriage ceremony or filed a marriage license.

Providing a blanket definition of common law marriage proves difficult as laws vary from state to state. Today, few states allow new common law marriages. No common law state mandates the exact number of years you must live together to be in a valid common law marriage. 

"Common law marriage is a court-created doctrine that says that if a couple has been holding themselves out as a married couple for a number of years, but didn't register the marriage with the state, the couple will be considered married in the eyes of a court,” explains attorney Kevin Tillson. "States have enacted statutes recognizing these common law marriages, but have severely limited their application.”

Meet the Expert

Kevin Tillson owns family-focused law practice Tillson Law P.C. in Sandy, Oregon. The firm's expertise includes estate planning, probate and trust administration, business planning, and real estate transactions.

Read on for a breakdown of everything you need to know about common law marriage.

Common Law vs. Marriage vs. Civil Unions

Common Law Marriage

Without a marriage license, your state may not have a way to document your common law marriage. If you seek divorce down the road, you may have legal difficulties with visitation rights, child support, property division, spousal support, medical rights, loss of survivorship, and inheritance.

“Oregon doesn't recognize common law marriage, but in cases where the partners have split up, courts in these situations will divide assets based on each member of the domestic partnership's contribution to the acquisition or increase in the value of the assets during the relationship,” explains Tillson. “No spousal support can be awarded. Dividing retirement accounts, bank accounts, and anything not jointly owned can be difficult.”

Top Three Things to Know About Common Law Marriage:

  • You may be eligible for most state and federal benefits granted with traditional marriage. Consult an attorney in your state.
  • All 50 states and Washington D.C. will recognize a valid common law marriage.   
  • It's necessary to terminate a common law marriage with a divorce proceeding.

Marriage

Mr. Tillson defines traditional marriage as “a civil contract between the state and the two individuals getting married. Marriage is a creature of statute and must be registered with the state (the reason you receive a marriage certificate). In exchange for entering into the civil contract, the state gives the two individuals a number of statutory rights.”

Top Three Things to Know About Marriage:

  • It's a legal status with automatic rights, federal benefits, tax breaks, and responsibilities.
  • Divorce laws are specific and comprehensive.  
  • Some states' laws provide that a surviving spouse automatically inherits all of the assets. 

Civil Unions 

As with common law marriage, civil unions and domestic partnership laws vary from state to state. It’s wise to check with an attorney before deciding which is best for you. “Before Oregon and many other states recognized same-sex marriages as legal, legislature created civil unions or registered domestic partnerships,” says Tillson. “Civil unions were utilized as a work-around for states that were reluctant to remove the terms ‘man’ and ‘woman’ from the definition of marriage. The laws establishing civil unions provided individuals the same rights that married couples have were registered with the state—similar to a marriage.”

In Oregon, the term ‘registered’ is key, since to be afforded the rights of a married couple, the domestic partnership must be registered with the state. In Oregon, only same-sex couples can register a domestic partnership. Once you have a registered domestic partnership or civil union, then most state laws applicable to married couples apply to domestic partners.

The biggest difference between a marriage and a civil union occurs under federal laws. A civil union does not guarantee a couple has federal rights unless expressly provided by the Federal Government.

Top Three Things to Know About Civil Unions:

  • Same-sex marriages are legal in all 50 states and D.C., so most states now recognize existing civil unions as legal marriages; consequently, fewer states offer civil unions as an option. 
  • You can't file federal taxes jointly. Veterans benefits available to a surviving spouse, may not apply to civil unions.
  • Provides all of the state benefits of marriage.

Requirements for a Common Law Marriage

Laws vary from state to state, so it's best to contact your attorney for any specific questions or concerns.

  • Both members of the couple must consider themselves living together as a married couple for a number of years.
  • The couple must present themselves as a married couple. They could open a joint bank account, purchase property together, refer to their partner as "my spouse" or share the same last name, file taxes jointly, wear wedding rings etc., in a state that recognizes common law marriage.
  • Must be unmarried and of legal age to marry.

States Allowing Common Law Marriage

Only a few states still allow the establishment of common law marriages:

  1. Colorado: Common law marriage contracted on or after Sept. 1, 2006, is valid if at the time the marriage was entered into both parties are 18 years or older; there is evidence of a mutual agreement and the marriage is not prohibited by other law. (Colo. Stat. §14-2-109.5)
  2. Iowa: Common law marriage is for purposes of the support of dependents. Otherwise, it is not explicitly prohibited. (Iowa Code §595.1A)
  3. Kansas: The State of Kansas shall not recognize a common law marriage contract if either party to the marriage is under 18 years of age. (Kan. Stat. §23-2502)
  4. Montana: Each applicant must be competent to enter into a marriage by mutual consent, cohabitation, and public repute. (MCA. Stat. §40-1-202 and MCA. Stat. §40-1-403)
  5. New Hampshire: Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of three years, and until the decease of one of them, shall thereafter be deemed to have been legally married." (N.H. Stat. §457:39). It is used to determine probate when the surviving spouse petitions the Probate Court for the deceased partner’s estate.  
  6. Texas: Every marriage presumed valid. Refers to “Informal Marriage” and requires a signed declaration of marriage to prove informal marriage in a judicial, administrative, or other proceedings. (Tex. Family Law §1.101Tex. Family Law §2.401-2.402)
  7. Utah: Recognizes marriage which is not solemnized as legal, if a court or administrative order establishes that it arises out of a contract between a man and a woman. Other requirements apply. (Utah Stat. §30-1-4.5)
  8. District of Columbia recognizes common law marriage and along with Rhode Island and Oklahoma; validity is usually decided by case law. 
  9. South Carolina: South Carolina Supreme Court Justice abolished marriage without a license as of July 24, 2019.

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