Chances are, if you have lived with your significant other for a long period of time, someone you know has brought up the subject of common-law marriage. This may be because many people believe that a common-law marriage is automatically established after a couple has lived together for a certain amount of time – commonly seven years.
So, is this true? Are you unknowingly in a common-law marriage? In this article, we will discuss what constitutes a common-law marriage, what rights and benefits are established by entering into a common-law marriage, and what you need to do to end your common-law marriage.
What exactly is a common-law marriage?
A common-law marriage, sometimes called a non-ceremonial marriage or informal marriage, is defined as a marriage created without ceremony with a mutual agreement to form a marital relationship, including cohabitation as husband and wife, and with the assumption of marital obligations. In short, common-law marriage is an agreement by a couple to live as a married couple, with all the marital rights and responsibilities, without the need for a formal marriage ceremony.
Despite popular belief, there is no threshold of time that living with your significant other would automatically constitute a common-law marriage. Instead, there are a number of requirements that must be met in order to establish a common-law marriage. In general, some indicators that you may be in a common-law marriage include:
- Publicly holding your relationship out as a marital relationship (i.e. telling friends, co-workers, etc. that you are married)
- Having a marriage ceremony without obtaining a marriage license
- Calling one another "husband" and "wife"
- Using the same last name
- Filing joint tax returns
- Establishing joint finances, such as credit cards, bank accounts, or purchasing a home together (in conjunction with other factors)
Note: Cohabitation (living together) is also a requirement to prove a common-law marriage, but cohabitation alone does not establish a common-law marriage. Common-law marriages must also meet the same requirements to establish a traditional marriage in that neither party may already be married when the common-law marriage is established; both parties must be of legal age to enter into a marriage, and they may not be in an incestual relationship.
It should further be noted that the factors, or proof, of a common-law marriage vary from state to state, and not every state recognizes common-law marriages.
Does my state recognize common-law marriage?
Although you may have met one or more of the requirements, you still may not have established a common-law marriage if you live in a state that does not recognize this form of marital union. The following states have statutes (laws) or case law (precedents established by court cases) that allow for common-law marriages:
- Colorado
- Iowa
- Kansas
- Montana
- New Hampshire
- Oklahoma
- Rhode Island
- South Carolina
- Texas
- Utah
Another set of states have abolished common-law marriages but still recognize those marriages formed prior to the date common-law marriages were abolished:
- Alabama – prior to January 1, 2017
- Georgia – prior to 1997
- Florida – prior to 1968
- Idaho – prior to 1996
- Ohio – prior to October 1991
- Pennsylvania – prior to 2005
What happens if you enter into a legal common-law marriage but then move to a state that does not recognize common-law marriages?
In general, states must recognize a legal marriage established in another state. For instance, if you establish a valid common-law marriage in Colorado and later move to California, your marital relationship does not cease to exist once you enter California. You will still remain in a marital relationship.
Does a common-law marriage come with any rights or benefits?
Couples who enter into a common-law marriage established in a state that recognizes them are afforded the same rights, benefits, and responsibilities as those in traditional marriages. This is because a common-law marriage is a legal marriage. Some of these rights may include:
- Marital tax breaks and deductions
- The ability of the surviving spouse to receive Social Security income from their deceased spouse
- Eligibility for spousal benefits from employers
- Gift Tax exemptions
- Marital discounts on auto insurance
- The right to inherit property upon the death of one spouse
If a common-law marriage gives a couple all the same rights as a traditionally married couple, why not just get married in the traditional way?
Many couples choose to enter into a common-law marriage to forego the pomp, circumstance, and hassle of obtaining a marriage license and planning a marriage ceremony with witnesses. This may be their second or third marriage, or they may just want to buck the norm. No matter the reason a couple has for entering into a common-law marriage – if they decide to end their relationship, traditional rules apply.
How does a common-law marriage end?
While a common-law marriage may not be traditional in its formation, it is traditional in its dissolution. That is, there is no "common-law divorce." Couples who are common-law married must follow the same divorce process to end their marriage as traditionally married couples. Once a legal marital relationship has been established, the only way to legally end it – and to be able to get remarried, for instance – is to get a divorce.
While it may seem like a hassle, going through a divorce is the only way to ensure a clean legal break from your common-law marriage. This is true even if you have moved to a state that does not recognize common-law marriages. However, in these instances, you should consult a competent lawyer licensed to practice in your jurisdiction to discuss the specific facts of your case, as the issue of common-law marriages and divorces across state lines is incredibly nuanced.
Note: If you and your significant other are living together but do not wish to get married or establish a marital relationship, consider entering into a legal Cohabitation Agreement. This agreement sets forth expectations of cohabitation, provides protections for both parties, and can help ensure there is no ambiguity regarding you and your significant other's intentions regarding your relationship.
In short, establishing a common-law marriage requires that you and your spouse meet a number of factors that can vary greatly depending on the state you live in. It also requires that you live in one of the few states that actually recognize common-law marriages as lawful marriages. Additionally, living together for a certain amount of time does not automatically create a marital relationship. If you and your common-law spouse wish to end your relationship, you must follow the same divorce process that traditionally married couples do.
The best way to protect your interests is for you and your significant other to be very clear regarding your intentions, whether you decide to enter a marital relationship or live together as an unmarried couple.
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