What is a common law marriage?

The current Common-Law Marriage States and Everything You Need to Know

Although considered an archaic form of marriage for many, common law marriage continues to exist in one form or another in some states to this day. Other states recognize it with certain restrictions. So, what is common law marriage exactly, and which are the states that formally recognize it?

 

What Exactly Is a Common Law Marriage?

When a couple is in a relationship that has the appearance of marriage, but there is no formal proof of it (e.g. insurance or a marriage certificate), it is called a common-law marriage. It is a legal concept that typically confers both the obligations and benefits of formal marriage. The rule of common law marriage is most often applied by courts in the unfortunate event that one partner dies without a will and the surviving partner has an inheritance claim based on the relationship.

Under the common law marriage rule, the surviving partner can inherit property under intestate succession laws, but some courts may not recognize an unmarried partner as a rightful heir.

 

Common-Law Marriage Requirements

Although they vary across common law marriage states, there are some basic requirements that couples should meet in order to validate a common law marriage which can be seen below.

  • You must live together for a certain time (depending on the state).
  • Both partners should have the legal right or capacity to marry, which means they should not be married to someone else, be at least 18 years old (there are exceptions in some states), and must be of sound mind.
  • You both must intend to be married.
  • The couple should hold out to family and friends as a married couple (e.g., taking the same last name, having joint bank accounts, referring to each other in public as “spouse,” “husband,” “or wife”).

 

Which Are the Common Law Marriage States?

The states that continue to recognize common law marriage are just a handful. Some of them provide common-law marriage rules through court decisions, and others do it in their statutes. The common-law states are:

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

Although not a state, the District of Columbia also permits common-law marriages.

There are a few things you need to be aware of when it comes to New Hampshire, Oklahoma, and Rhode Island. The state of New Hampshire only recognizes common law marriage regarding estate affairs. If one of the partners dies, the surviving one is allowed to claim real estate inheritance.

Oklahoma is a curious case where the state statutes and state case law seem to clash in terms of the legality of common law marriage. The statutes appear to permit only formalized marriages but, despite that, Oklahoma courts have upheld common-law marriages.

Rhode Island courts have often criticized the common law marriage notion as something outdated, so the state can change its statute in the future.

 

States Recognizing Prior Common Law Marriages

In addition to the common law marriage states mentioned above, there are a few other states that accept these marriages if they existed before the prohibition date. In other words, the states below used to legally allow common-law marriages, but eventually prohibited them. In the spirit of fairness, however, they continue to recognize the common law marriages that existed before that law was prohibited.

These states are:

  • Alabama
  • Florida
  • Georgia
  • Idaho
  • Indiana
  • Ohio
  • Pennsylvania
  • South Carolina

If you need help understanding the intricacies of common law marriage, it is best to consult an attorney. Legal Chiefs’ network of lawyers is here to assist you!

 

Family Law FAQ

With major life events and changes, it’s always a good idea to consult a lawyer. Getting through a divorce may also be a very stressful project and you need someone experienced to protect your rights as well as protect your children’s rights (if you have any). Here at Legal Chiefs, we can get you in touch with someone current with the laws in your state concerning divorce, marriage, marital property, child custody, visitation, and family support
The grounds for divorce may be based on no-fault or fault depending on the state, but no-fault divorce is available in some form in all 50 states. Most of the states also have fault-based grounds as an additional option. A no-fault divorce is one in which neither of the partners blames the other for the breakdown of the marriage and common bases for no-fault divorce may be “incompatibility,” “irretrievable breakdown,” or “irreconcilable differences.” Suppose the parties have lived separately for a certain period with the intent that the separation is permanent. In that case, it is another common basis of no-fault, but once again, the specifics vary from state to state. With a fault-based divorce, the list of grounds may include physical cruelty, mental cruelty, adultery, attempted murder, habitual drunkenness, desertion, use of addictive drugs, impotence, insanity, and infection of one’s spouse with venereal disease.
While every divorce starts with a bit of bitterness, statistics show that most of the cases are settled without the need for a judge to decide on a property or other issues. In most cases, spouses are free to divide their property as they see fit in what is called a “marital settlement agreement”, a contract between the married couple that divides property and debts and resolves other divorce issues. However, having a family law attorney is still recommended, and in case the division of property cannot be settled, then the court must make the determination. Once again, the specifics vary from state to state, but many states allow both parties to keep their separate and nonmarital properties as a starting point. Another thing to know about assets and divorce is how dividing marital or community property works. Again, each state has its specifics, and some states are community property states by definition. For example, the state of California divides equality marital property unless a premarital agreement specifies otherwise. However, most states apply the “equitable distribution” concept where the court divides the marital property as it thinks fair. This doesn’t necessarily mean a 50-50 division. The common factors considered by the court include the amount of nonmarital property, each spouse’s earning power, waste and dissipation, fault, services as a homemaker, duration of the marriage, age, health, and others.
When parents can’t agree on custody of their child/children, the court will decide custody based on “the best interests of the child.” There are many factors involved, not one of which is considered the most important.
Joint custody has two parts - joint legal custody and joint physical custody, and a joint custody order can have both or one of the parts. ● Joint legal custody refers to both parents sharing the significant decisions regarding their child/children, which usually include school, health care, and religious training. Other decisions may include summer camps, extracurricular activities, the age for dating or getting a job, discipline methods, etc. ● Joint physical custody refers to the time spent with each parent. The amount of time is flexible and can range from dividing the time between the two parents’ equality to visits every other weekend, and so on. The residing addresses of the parents are often considered, and living close is important, especially in situations where the time spent with both parents will be divided equally.
Since 1965, all 50 states and the District of Columbia have enacted legislation enabling grandparents to petition the courts for visitation rights with grandchildren. However, granting such rights is not automatic, and in most cases, grandparents merely have grounds for asking for a visitation order. Most commonly, a grandparent may petition for visitation after the death of a parent or upon divorce of the parents. Some states allow petitions when the child has previously lived with the grandparent, a child is born out of wedlock, and when a parent is incarcerated.
Unlike most legal matters where specifics depend on the state, talking to a judge separately is prohibited in all 50 states. All communication with the judge takes place on the record during a hearing. This is a way of ensuring fairness to both sides, and just as you would not want the judge to talk to the other party without you being present, the judge is not allowed to talk to you without the other party being present.
Only before a judge has done anything on the case, each party files one “peremptory challenge.” It costs $450, and there is no way to waive this fee. A new judge will be randomly assigned to your case, meaning you cannot pick the new judge. Be careful with the strict timing requirements for filing a peremptory challenge, as the money spent on a challenge is not refunded.

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