Family Law FAQ
What is Common-Law Marriage?
Under the common law marriage doctrine, you are considered legally married, despite not having a marriage license, a ceremony or a marriage certificate, if you meet specific requirements listed in the statutes of the jurisdiction where you live. The benefits of common law marriage include the right to inherit upon the death of a spouse and the right to spousal support and an equitable division of property should the marriage terminate. The jurisdictions that recognize common law marriage are Alabama, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah. In addition to these states, some other jurisdictions will recognize a common law marriage if it was valid in one of the (common-law) states and meets the statutory requirements in those states, even if it is a jurisdiction that does not have a statute that provides for common law marriage.
The statutory requirements for common-law marriage may differ depending on the jurisdiction. However, many states have similar basic requirements such as
- Consent of the parties to be husband and wife
- Mental capacity for consent (including minimum age requirements)
- Cohabitation (continuous in many jurisdictions)
- Parties holding themselves out to the public as a married couple
- Intent of couple to be married
In some states, the couple must also sign a form indicating their agreement to live as a married couple and their intent to abide by commonly held marital duties and obligations. Other states recognize common law marriage between couples only before a certain date. For example, in Georgia, a couple must have entered into a common law marriage prior to January 1st, 1997, anything after that date will not be recognized as a marriage by the state and will not be enforceable or valid. Yet in other states, common law marriages are only recognized by the state upon the death of one of the spouses. If the common law marriage is valid in the state, it will be considered a marriage for inheritance functions only.
Ending a Common-Law Marriage
Even though some states recognize common-law marriage, there is no common-law divorce those states. If a couple married at common-law wishes to terminate their marriage, they must do more than stop living as husband and wife to consider the marriage over. The marriage may not end the same way it was created, instead, there must be a formal procedure and legal process. In most states, the termination of a legal “ceremonial” marriage and a common-law marriage are the same. Parties must file a complaint with the court to terminate their marriage; forms may be for divorce, dissolution of marriage or annulment depending on the state law and the situation. The specific requirements vary by jurisdiction and are contained in state statute. The divorce complaint may also include provisions for distribution of property or assets, spousal maintenance or alimony and custody. It is important to speak to an attorney in your jurisdiction to learn more about the laws regarding common-law marriage and termination of common-law marriage in your state.
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