Protect Your Rights as a Spouse in a Common Law Marriage

Common Law Marriage

Are you eligible for common law marriage benefits in the state you currently live in? Hire an experienced attorney to evaluate the details of your relationship and how the local laws apply. This is especially important if you are starting a family, purchasing property together, getting a divorce or your partner has passed away.

What Is Common Law Marriage?

The concept of a common law marriage has existed in America since the 1800s. Common law couples live as married couples and present themselves as such. However, this is done without obtaining a marriage license and going through the usual legal steps of a formal marriage.

In states that recognize common law marriages, qualifying couples receive the same legal treatment as married couples. This includes instances of separation, particularly where property division and parental rights are concerned.

Note that common marriage laws differ by state. In fact, some states do not recognize these at all. Because of the wide variations in definition and how states apply marital laws, ensuring you have an attorney to protect your rights is important.

How Do You Establish or Prove You Have a Common Law Marriage?

As alluded to before, states set their own guidelines when it comes to common law requirements. Even so, there are some general criteria you tend to find across the board:

  • You must live together for a certain period of time as determined by the state.
  • Must be of legal age to marry and have the capacity to marry, meaning you are of sound mind and cannot be married to another person.
  • Must have the intent to marry one another.
  • You both must present yourself to friends and family as being married. This might include sharing a surname and owning a joint bank account or credit card. 

Establishing your union as a common law marriage involves a number of documents of proof, such as a personal affidavit stating when and where you as a couple agreed to become spouses. Documentation might also include any details around previous marriages either of you had and affidavits from your friends or family vouching for your union. You might also need to provide a bank statement to prove joint ownership of an account or present mortgage documentation showing joint financial obligation.

The burden of proof can be great and the length of the approval process can be long, but for many couples seeking to legitimize their union without rushing down the aisle, this is well worth the hassle. Our team of experienced family law attorneys can help make the process less stressful, so you can enjoy your benefits much faster.

What Are the States That Recognize Common Law Marriage?

Today, several states still recognize common law marriages in some form. Note that some states offer only limited provisions for this type of relationship:

  • Alabama (limited capacity)
  • Colorado
  • District of Columbia
  • Georgia (limited capacity)
  • Idaho (limited capacity)
  • Iowa
  • Kansas
  • Montana
  • New Hampshire (limited capacity)
  • Ohio (limited capacity)
  • Oklahoma (limited capacity)
  • Pennsylvania (limited capacity)
  • Rhode Island
  • South Carolina
  • Texas (known as informal marriage)
  • Utah

If you move from a state that recognizes common law marriages to one that does not, you might not need to marry to get the same rights as formally married couples. Sometimes, you have the option of filing for recognition of your union. This is a complicated process as the state may try to encourage you to marry instead. An experienced attorney can help you navigate the process and advise you on what to do next.

What Are Some Common Misconceptions That Couples Should Be Aware Of?

As a unique union, there are many misconceptions about common law marriage that may cause people to jeopardize the validity. Because of this, an experienced attorney might warn you of some of the myths below:

  • Living together long enough will constitute a common law marriage. This is only one of the requirements and the length of cohabitation varies by state.
  • If we separate, we can avoid the hassle of a divorce. Once you’re in a legally recognized common law marriage and would like to separate, you go through the regular divorce process. Even if you move to a state that doesn’t recognize a common law marriage, you might still need to get a formal divorce. 
  • Should your common law spouse pass or become disabled, you will automatically receive his or her assets. As a survivor in the common law marriage, you have the burden of proving the validity of your union and your spouse’s family holds priority over medical decisions or inheritance of your spouse. 
  • If we separate, the property we lived in will be split in half. If your spouse is the sole owner of your residence, he or she may sell that residence without your consent and without splitting the income. It’s important to understand your state laws in regards to co-owning a property as a couple in a common law marriage. 
  • If we have a child together, we must go through the adoption process. A child born from a common law marriage has the same rights as those from a conventional marriage. The child may also be given the last name of either parent or carry both last names. 

Connect With an Experienced Local Family Law Attorney.

Couples experiencing special circumstances might have the greatest difficulty proving the legitimacy of their common law marriage. For instance, one spouse may routinely leave the home for work out of state or overseas. In other instances, the couple might have voluntarily separated a few times, making it difficult to meet the cohabitation guidelines.

In these and even more complicated situations, an experienced attorney might find workarounds to help you prove the legitimacy of your marriage. After all, even traditionally married couples sometimes separate and resume the marriage or spend time apart for work and school.

If you have questions about your common law marriage or would like to establish its legitimacy, let us connect you with an attorney who knows the ins and outs of the applicable laws in your state.

Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced lawyer in your area!

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