What Is Common-Law Marriage?

If you have been living with your partner for a number of years, you may be wondering if you have any legal rights as a result of that relationship. Some states have legal provisions for common-law marriage. Read on for more information and how to know if you are part of a common-law marriage.

The requirements for common-law marriage

Many people think that living together for a certain length of time constitutes a common-law marriage, but this is a myth. Cohabitation is just one of several requirements, and in most states there is no minimum length of time required. Only certain states recognize common-law marriage and each state has their own guidelines concerning the requirements. While each state is slightly different, the following general requirements must be met in the states that allow common law marriage.

1.  You must have the capacity to be legally married in order to be common-law married. In other words, you must be qualified to be legally married in that state and not

  • married to someone else,

  • underage,

  • of the same sex, or

  • of unsound mind.

2.  You must both be of the same mind and intention to live as a common-law couple.

3.  You must both "hold yourself out" to be a common-law married couple. This means that you represent yourself as married to family, friends, your church, and the community you live in. You file tax returns as married filing jointly and generally behave as if legally married.

Divorce in a common-law marriage

You are considered to be legally married in those states that allow common-law marriage; therefore, the procedure for ending the marriage is the same as for traditional marriage. There is no such thing as a common-law divorce.

Issues can occur when one person wants to end the relationship and claims that there was never a common-law marriage. This claim is usually an effort to avoid going through divorce and the resulting property and debt division, child support and custody, and marital support.

The judge will ultimately decide on whether or not a common-law marriage existed based on the following criteria:

  • How long did the couple live together?

  • Did the parties share last names?

  • Was there property purchased together?

  • Did they file joint tax returns?

  • Did they have and raise children together?

Similar questions would be asked in regard to issues that could arise from the death of one party and the resulting issues with inheritances, life insurance, and Social Security benefits.

As you can see, the question of whether or not you are in a common-law marriage can be open for interpretation, so a consultation with a family law attorney is vital so that your marital rights can be protected. Consider speaking with a lawyer from Ivy Law Group PLLC for more information.