Kara Sears
The recognition of common-law marriages varies across different states in the US. While some states like Colorado and Texas recognize common-law marriages, others like Florida do not. In states that recognize common-law marriages, couples who live together and hold themselves out to be married are considered legally married, even without a marriage license or ceremony. This has implications for various legal rights, including the division of property, custody matters, health insurance, inheritance rights, and spousal rights during divorce proceedings. When applying for an FHA loan, the credit history of both spouses is considered, and non-purchasing spouses may be required to sign loan documentation or undergo a credit check, depending on state laws. Understanding the recognition of common-law marriages in a specific state is crucial for determining the legal rights and financial implications for couples considering this form of marital union.
| Characteristics | Values |
|---|---|
| Common-law marriage | Occurs when a couple has lived together and developed a framework of marriage without obtaining a marriage license or having a formal ceremony |
| FHA recognition of common-law marriage | FHA does not explicitly recognize common-law marriage, but considers state laws when reviewing loan applications; some states like Florida do not recognize common-law marriage, while others like Colorado and Texas do |
| Legal rights of common-law spouses | Vary depending on state laws; in states that recognize common-law marriage, spouses may have rights to health insurance, inheritance, and property division, while in states that don't recognize it, they may not have the same rights as legally married couples |
| Termination of common-law marriage | If recognized in one state and then moved to a state that doesn't, a divorce must be filed in the state where the marriage was recognized |
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What You'll Learn
FHA views married couples jointly
FHA-insured loans are a popular option for first-time homebuyers due to their flexible guidelines and lower down payment options. However, it's important to understand how the FHA views married couples jointly when applying for an FHA loan.
The FHA considers married couples jointly, which means joint responsibility and joint liabilities. This is different from other loan types, such as government-backed loans like Fannie Mae loans, where the couple may have more flexibility in how they structure their loan application. When applying for an FHA loan, lenders will consider the credit reports and debts of both spouses, even if only one spouse is on the mortgage application. This is true even in cases where state law does not require the non-purchasing spouse to sign the loan documents. The FHA requires the lender to pull credit reports for both spouses to determine the borrower's debt-to-income ratio.
In community property states, each spouse is entitled to and liable for half of all property held in common in the marriage. This means that any property acquired during the marriage is considered jointly owned by both spouses, and both spouses are responsible for any debts incurred during the marriage. In these states, the non-purchasing spouse's signature may be required on the FHA loan paperwork, and their credit check may impact the loan application, even though they are not co-signing or co-borrowing.
It's worth noting that some states do not recognize common-law marriage, such as Florida, which abolished common-law marriage in 2016. In these states, couples with common-law marriage agreements do not have the same rights as married couples. However, if a couple has a valid common-law marriage in a state that recognizes it, they may be considered legally married in other states, including Florida.
When applying for an FHA loan, it's essential to understand the specific state laws and how they may impact the loan application process, especially when it comes to the rights and responsibilities of married couples.
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FHA loan rules for non-purchasing spouses
The rules for non-purchasing spouses vary depending on the state in which the FHA loan application is being made. In some states, a non-purchasing spouse may be required to sign FHA loan paperwork, even if they are not a co-borrower or co-signer. This is often the case for first mortgages, and the non-purchasing spouse's signature is used to recognise that they have no claim on the property. In these cases, the signature affirms that the spouse is not a borrower and is not required to sign the loan contract.
State laws covering such instances often require a signature to indicate the non-purchasing spouse's status on the loan. The non-purchaser is not obligated by law to become financially responsible, but their signature is required to identify their status as a non-borrower or co-borrower.
In some cases, the non-purchasing spouse's debts must be considered in the borrower's "qualifying ratios". This is common in community property states, where each spouse is entitled and liable for half of all property held in common in the marriage. In these cases, the non-purchasing spouse must submit to a credit check, but bad credit reports cannot be used to deny an FHA mortgage to the borrower.
FHA loan rules state: "Non-applicant individuals can have an ownership interest in the property at the time of settlement without executing the mortgage note and security instrument, regardless of whether the transaction is a purchase or a refinance." However, there are certain considerations, including that "the debts of the non-purchasing spouse must be included in the borrower's qualifying ratios if the borrower resides in a community property state".
If a non-purchasing spouse changes their mind and wants to become part of the loan before it has closed, they are required to submit the same application data as the original FHA loan applicant.
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Common-law marriage in Florida
In the past, Florida recognized common-law marriages. However, the state abolished this practice in 2016. According to Florida Statute §741.211, Florida does not recognize any common-law marriage formed after January 1, 1968. This means that cohabiting couples in Florida who are not legally married do not have the same rights as married couples. They are not entitled to spousal support upon separation, and they do not have inheritance rights. Additionally, they cannot make decisions for an incapacitated spouse, and they cannot have formal divorce proceedings if they break up.
A common-law marriage typically involves a couple living together for a certain period, presenting themselves as a married couple, and having the intention to be married. However, Florida no longer recognizes these marriages unless they were established in another state. So, if a couple has a valid common-law marriage from another state that recognizes such unions, Florida will recognize that marriage. This is due to the "Full Faith and Credit Clause" of the United States Constitution, which requires Florida to acknowledge the laws and judicial decisions of other states.
It's important to note that even though Florida does not recognize common-law marriages initiated within the state, it does recognize the validity of any marriage entered into in another state, including common-law marriage relationships. Therefore, if a couple has a valid common-law marriage recognized by another state, Florida will consider them legally married, and they may have the right to pursue some spousal rights, such as health insurance or inheritance rights.
The lack of recognition of common-law marriages in Florida can have significant implications for cohabiting couples, especially regarding property division, spousal rights, and decision-making in the event of incapacity. Couples in such situations may benefit from seeking legal advice to understand their rights and options.
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Rights of common-law spouses in Florida
In Florida, common-law marriages are not recognised for relationships formed after January 1, 1968. This means that common-law spouses in Florida do not have the same rights as married couples.
Common-law marriages typically involve a couple living together for a certain period, presenting themselves as a married couple, and having the intention to be married. However, in Florida, a couple must possess a marriage license to be officially married.
Without an official marriage, common-law spouses in Florida do not have the same rights as married couples in areas such as property ownership, inheritance, healthcare decisions, and child custody. For example, in a divorce, each spouse is entitled to a portion of any property acquired during the marriage under Florida's equitable distribution statute. Common-law spouses do not have this right. Additionally, if a common-law couple has children together, the father is not automatically assumed to be the biological parent, which can complicate issues such as timesharing and parental responsibility.
While Florida does not recognize common-law marriages formed within the state after 1968, it does recognize common-law marriages that were established in other states. So, if a couple has a valid common-law marriage in a state that recognizes it, Florida will consider them legally married, and they may have the right to pursue some spousal rights, including health insurance or inheritance rights.
It is important to note that the specific rights and protections available to common-law spouses in Florida can vary depending on individual circumstances, and it is always recommended to consult with a knowledgeable attorney for specific legal advice.
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Common-law marriage in other states
Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that is only recognised in a few US states. These include Alabama (if created before 1 January 2017), Colorado, Florida (if created before 1 January 1968), Georgia (if created before 1 January 1997), Indiana (if created before 1 January 1958), Iowa, Kansas, Montana, New Hampshire (with limited recognition), Ohio (if entered before 10 October 1991), Oklahoma, Pennsylvania (if entered before 1 January 2005), Rhode Island, South Carolina (with limited recognition), Texas, Utah (with limited recognition), Idaho (if created before 1996), and the District of Columbia.
Some states have abolished common-law marriage but still recognise common-law marriages if they began before a certain date or for a specific purpose. For example, Alabama, Florida, Georgia, Idaho, Indiana, Ohio, and Pennsylvania have abolished common-law marriage but still recognise marriages that began before their respective dates.
In states that recognise common-law marriages, couples must meet certain requirements to gain marital status. These include living together for a certain amount of time, which varies depending on the state. Additionally, both parties must be at least 18 years old.
It is important to note that the recognition of common-law marriages can vary from state to state, and specific state or jurisdiction requirements must be considered. While some states fully recognise common-law marriages, others have limited recognition or only recognise them for certain purposes, such as inheritance.
Furthermore, under the United States Constitution, the full faith and credit clause states that all states must recognise common-law marriages from other states as long as the couple's relationship meets the requirements of a common-law marriage in the state where it was established. This means that even if a couple moves to a state that does not have common-law marriage, their marriage will still be recognised as long as it was valid in the state where it was originally established.
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Frequently asked questions
The FHA does not recognize common-law marriage. State law, lender standards, and FHA loan regulations may all factor into the answer, depending on the circumstances.
A common-law marriage occurs when a couple has lived together, developing a habit or framework of marriage without obtaining a marriage license or having a formal ceremony.
States like Colorado and Texas recognize common-law marriage. Florida, on the other hand, does not recognize common-law marriages after 1967.
In a common-law marriage, couples do not have the same rights as legally married couples. They cannot make decisions for an incapacitated spouse, and they also cannot have formal divorce proceedings if they break up.
Courts may consider factors such as whether the couple has joint financial accounts, tells people they are married, and recognizes that the other person has the authority to make financial and healthcare decisions for each other.
