Despite the fact that the concept of common law marriage has been around for years, most people probably don't understand how it works. One of the reasons may be that most states don’t allow them anymore. But if you live in a state that recognizes these marriages, your relationship may meet the requirements.
What Is Common Law Marriage?
Common law marriage is a legal status that arises out of the nature of your relationship with a significant other. Although you may not have a marriage certificate, you may still be considered married based on your conduct during your partnership.
Basic Elements of a Common Law Marriage
The most fundamental element of common law marriage is “intent.” In short, the couple has to treat their relationship as a marriage, even though it’s never been formalized in the traditional sense. Additionally, you’d have to be in compliance with your state’s laws regulating marriage. Although the laws vary a bit from state to state, the following are some basic requirements:
- you must meet the minimum age requirement
- you must have the mental capacity to enter into the marriage (be of sound mind)
- you can’t be legally married to someone else, and
- you must not be closely-related to your spouse.
You also have to publicly hold yourself out as married. Evidence of this might include:
- a written agreement between you and your partner in which you acknowledge that you consider yourselves married
- holding yourselves out as a married couple to friends, family, and your community
- calling your partner your “spouse”
- sharing a last name
- sharing finances, income, property, and
- opening joint bank accounts.
Be aware that there isn’t a standard time period during which you have to live together. Any such requirement would be established by the particular laws in your state.
The Effect of Common Law Marriage
The question about whether a couple was in a common law marriage typically only comes up if one partner dies and the other is making a claim against the estate—or if the couple breaks up, and one or both partners file claims for support and/or property.
If a court determines that your relationship amounted to a common law marriage, it can have a profound effect on your life. Such a finding basically puts you in the same position as someone who had a formal marriage ceremony and received a marriage certificate. If you want to end a common law marriage, you’ll need to get a divorce, with all that entails regarding such issues as alimony and property distribution.
Child support and child custody don't depend on the parents' marital status—courts can issue child custody and child support orders for children whose parents were never married to one another. But alimony and property division issues are treated differently depending on marital status. Unmarried couples generally have no rights to share in property under the family law rules of their state. But if you're considered a common law spouse, you may:
- request a share of your joint property
- be entitled to receive spousal support (or you may have to pay it) and
- be liable for your joint debts.
Likewise, a decision that a common law marriage exists could entitle you to benefits accorded to those who are traditionally married, such as Social Security benefits from your spouse's work record—this may depend on whether the state you live in recognizes your common law marriage. You should also note that a valid common law marriage in one state should be recognized by most other states as well.
What States Recognize Common Law Marriage?
The best way to approach this question is to divide the states into two groups. Some states authorize common law marriage as a current, viable form of marriage. Others have banned the concept, but still recognize such marriages that existed before the ban took effect.
States that Still Authorize Common Law Marriage
The following jurisdictions currently authorize common law marriages:
* Note that although Alabama presently permits common law marriages, under a new law they will no longer be allowed after January 1, 2017.
New Hampshire will recognize a common law marriage, but it appears to be a retroactive validation, occurring only after one of the spouses passes away. Under the New Hampshire law, a couple who lives together for three years up to the date one of them dies will be deemed legally married, provided they acknowledged each other as husband and wife during their time together and others generally regarded them as married. Because of the timing element of New Hampshire’s law, it will primarily relate to post-death issues, such as inheritance.
In Oklahoma, there appears to be a conflict between the state statutes and state case law as to the legality of common law marriages. The statute ostensibly bans such marriages after November 1, 1998, but the courts seem to be at odds as to whether that prohibition is etched in stone. In short, Oklahoma law appears to be up in the air on the issue.
Something else to note on this subject is that some states put a time limit (sometimes as short as one year) on how long after a relationship is over you can claim the existence of a common law marriage.
Let’s say, for example, your relationship ends, but at some point down the road, you decide you want alimony and some of your former partner’s assets. You figure a divorce is the way to go, and you go to court to ask a judge to declare that your relationship was a legal common law marriage. If your state puts a one year limitation on making that claim, and you make your application after the one year period ends, your application will be denied.
States Recognizing Prior Common Law Marriages
The following is a list of states that recognize preexisting common law marriages:
- Florida (if the marriage was before January 1, 1968)
- Georgia (if the marriage was before January 1, 1997)
- Idaho (if the marriage was before January 1, 1996)
- Indiana (if the marriage was before January 1, 1958)
- Ohio (if the marriage was before October 10, 1991)
- Pennsylvania (if the marriage was before January 1, 2005)
Recognizing Same-sex Common Law Marriages
It appears that, currently, only the District of Columbia and Rhode Island acknowledge same-sex common law marriages. Iowa is a bit of a conundrum: This state recognizes both common law marriage and same-sex marriage. However, its law on common law marriage isn’t yet gender-neutral. Rather, it still references husband and wife. Hopefully, its legislature or the courts will clarify this issue soon.
Remember that laws can change at any time—what’s valid today may not be so next week. If you have specific questions about common law marriage, you should contact an experienced family law attorney in your area.