Most couples opt for a traditional marriage that involves an official license and ceremony. However, this is not the only method for getting married. One alternative is known as common law marriage. Common law marriage has existed in the United States since the late 1800s, and it is still recognized as a viable form of marriage in Arizona, Colorado, Washington, D.C., Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah. Common law marriages are recognized in Georgia, Idaho, New Hampshire, Ohio, Oklahoma, and Pennsylvania with some restrictions, mostly based on the date the common law marriage was formally recognized.
Criteria for Common Law Marriages
In a general sense, a common law marriage functions just like any other. A common law marriage is just as legally binding and valid as any other. However, to obtain formal recognition, your state must allow common law marriages, and you and your partner must meet your state’s requirements. Typically, those criteria include the following:
- Both you and your intended spouse must have the “capacity to marry,” meaning that you are both legally permitted to marry in your state under typical circumstances. Generally, this means you must meet the minimum age requirement to marry in your state, be of a sound mind, and not currently be married to anyone else.
- You must live together for a minimum amount of time, as specified by your state.
- You and your partner must both intend to marry.
- You must publicly display marital behaviors, such as referring to one another as “husband” and “wife,” sharing assets such as bank accounts, credit cards, and vehicles, and take the same last name. Friends and family should be accustomed to recognizing you and your partner as a married couple.
Most states have specific wording in their common law marriage laws that states a common law marriage can only exist between one man and one woman, but the Supreme Court of the United States recently ruled that prohibiting same-sex marriage is unconstitutional. Generally, if you meet the criteria for common law marriage in a state that recognizes it, a judge must simply agree that your relationship with your partner qualifies as a marriage.
How Is Common Law Marriage Different From Traditional Marriage?
In many aspects, a common law marriage is exactly the same as any other. Couples that marry under common law typically don’t bother with a formal ceremony, and their marriage will adhere to the same guidelines as any other. The marriage will only end through divorce or the death of one of the spouses.
One key difference, however, is that if one spouse dies, it may be difficult to prove your marriage legally existed for the surviving spouse to claim the deceased spouse’s life insurance and other benefits. The best defense against this type of eventuality is to draw up a written agreement between you and your spouse that clearly defines your marriage.
If the marriage’s existence comes into question, it will be up to a judge to determine whether the marriage existed. Other documentation that will help establish the marriage’s existence include jointly-filed tax returns, expense records for the upkeep of the shared home, surviving children, and shared property.
If you have concerns about the legality of a common law marriage, the best course of action is to contact a family law attorney. A lawyer experienced in family law can help you compile the documentation necessary for either you or your partner to legally establish your common law marriage. Additionally, an attorney can help you navigate the state-specific common law regulations for your state.
