Common Law Marriage Myths
Test Your Knowledge about Common Law Marriage
The first time I came across the concept of common law marriage was in the Internal Revenue Service's instructions for completing tax returns. I was cohabitating at the time, and wasn't sure whether my state, Arizona, was a commonlaw state that would have allowed us to file as married for tax purposes. Since then, I have lived in states where commonlaw marriages are officially recognized and states that don't acknowledge them as having any valid legal standing.
At one point, I was told (mistakenly) that I was "married by common law" to a man with whom I lived. Turns out quite a few people think they understand what is meant by the phrase, but have some mistaken beliefs. Check out whether your knowledge is accurate!
California and Common Law Recognition
Myth: Commonlaw Marriages are Legal in Every State
Every state will recognize a common law marriage sanctioned by another state because the United States Constitution has a "Full Faith and Credit" clause that directs states to honor the status of other states' requirements.
However, only ten states plus Washington, D.C. actually confer the legal status of marriage upon couples who haven't been wed through a religious or judicial authority. (A tenth state, New Hampshire, acknowledges common law marriage only for the purpose of inheritance, in which case the status is granted posthumously.)
In the last fifteen years, four states have stopped recognizing common law as a basis for marriage. Georgia, Idaho, Ohio and Pennsylvania formerly allowed common law marriages but have repealed them on the basis that they promote immoral values. These states still recognize couples who were granted commonlaw marriage status prior to the repeal of their respective laws.
States that Confer Married Status Based on Common Law
Myth: A Cohabiting Couple Could Discover their State Considers them Married
In common law marriages, the couple will not be considered married simply because they lived together, although nearly all commonlaw states require a period of cohabitation in order to qualify as married. Most of them don't specify just how long a couple has to live together. (Many people erroneously believe the cohabitation period requirement is seven years, which was valid for Pennsylvanians when the state still recognized common law as a basis for marriage.)
However, cohabitation is just one of the elements that must be in place before a state will acknowledge a couple as being married despite their lack of official sanctions saying it's so. In general, they must also meet other qualifications:
- They must intend to be married.
- They must be an adult, or a minor with parental permission (as defined by state law.)
- They must be agreeable to the marriage or have an intention to be married.
- They must "hold forth" as a married couple - shown by filing taxes jointly, telling people they're husband and wife, name changes, purchasing property together, and conducting their personal affairs as a married couple in such a way that others believe they're married.
Some states have other requirements, as shown in the article Do Common Law Marriages Require Divorce Proceedings When They End?
Topics of Interest Related to Common Law
- William Tetley, Mixed jurisdictions: common law vs civil law (codified and uncodified) (Part I)
An overview of the types of laws that affect Americans.
- Common Law Marriage
Case examples about common law marriages.
- Child Custody When You Were Not Married
Unmarried couples who split up often delay or avoid dealing with child support issues. Here's why you shouldn't and what you can do to save heartaches, time, and money.
Common Law Marriages Don't Require Divorces
This is partially true and partially false. A couple that qualifies as having a commonlaw marriage is entitled to the same rights as a couple married by the clergy or a justice of the peace. This may mean they can access health insurance benefits, be eligible for their partner's retirement program, and be privy to financial details that wouldn't be legally available to a cohabiting couple.
When a couple splits, if they have not merged any of their finances, do not have children or property together, and aren't receiving any benefits as a result of their relationship, it may be possible to simply walk away without doing more than telling friends and family that they've split. However, this isn't always a wise decision, because they can be held accountable for each other's debts in certain circumstances.
If they seek a court's assistance in splitting up property, or believe they're entitled to ongoing benefits like family support, a person who has been in a common law relationship can and should hire an attorney and file for a legal divorce in order to protect their rights.
States where commonlaw marriages are established, as well as states where a couple may have moved later, will continue to treat the marriage as a legal and valid entity until a divorce is filed. If a couple doesn't seek a legal divorce, and one party later remarries, the ex-commonlaw-spouse could potentially claim that bigamy is taking place!