Kara Sears
West Virginia does not have a statute that specifically defines or regulates common-law marriages, and common-law marriage laws have never existed in the state. However, West Virginia is one of the states that recognizes common-law marriages on a case-by-case basis, considering factors such as cohabitation, power of attorney papers, and the jurisdiction in which the marriage was contracted. The benefits of common-law marriage in West Virginia are similar to those of traditional marriage, including the right to make medical decisions for each other, inherit property without a will, and receive spousal benefits.
| Characteristics | Values |
|---|---|
| Common-law marriage laws | Do not exist in West Virginia |
| Marriage requirements | Both parties must be at least 18 years old |
| Parties under 18 must meet marriage requirements and obtain parental permission | |
| Prohibited marriages | Between close relatives |
| Intent to be married | Both parties must intend to be married and not just living together as roommates |
| Couple's legal age | Both parties must be of legal age |
| Benefits | Same as traditional marriage, including making medical decisions for each other, inheriting without a will, and receiving spousal benefits |
| Recognition of common-law marriage | West Virginia does not recognize common-law marriages |
| Court consideration | May consider the validity of the marriage in certain cases, such as divorce or separation proceedings |
| Factors considered by the court | Cohabitation in a jurisdiction that recognizes common-law marriage, date of declaring the marriage |
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What You'll Learn
Common law marriage laws have never existed in West Virginia
Common-law marriage laws have never formed part of the legal system in West Virginia. The state has specific marriage requirements, and until recently, courts would not consider property division settlements or other divorce and marriage settlement issues. While West Virginia still forbids common-law marriages, a court may now recognize such a union in certain circumstances, such as during divorce or settlement procedures.
West Virginia law outlines several requirements for marriage, including that both parties must be at least 18 years old (unless they are 16 or older and have met marriage requirements and obtained parental permission). The couple must not be closely related by blood, and both parties must intend to be married and not just cohabiting as roommates.
Although West Virginia has few laws addressing common-law marriages, courts may consider the validity of such a union upon two conditions: the couple has signed power of attorney papers, and the marriage was contracted in a state that recognizes common-law marriage.
In the context of a divorce or separation proceeding, West Virginia courts will consider various factors to determine the validity of a common-law marriage, including whether the couple cohabited in a jurisdiction that recognizes such marriages and whether the date of the union can be established.
While West Virginia does not have a statute specifically defining or regulating common-law marriage, it recognizes such marriages on a case-by-case basis, evaluating whether the couple meets the requirements for marriage by habit and practice.
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Common law marriage benefits
Common-law marriage laws have never existed in West Virginia, and the state has specific marriage requirements. However, West Virginia is one of the states that recognize common-law marriage. A court may consider the validity of the marriage upon two conditions: the couple signed power of attorney papers while in the relationship, and the marriage was contracted in a state and district that recognized such a union according to their common-law marriage laws.
The benefits of common-law marriage in West Virginia are the same as those of traditional marriage. A couple in a common-law marriage has the right to make medical decisions for each other, inherit from each other (with or without a will, depending on the state), and receive spousal benefits such as social security and pension benefits. Common-law marriage also makes it easier for couples to establish legal rights without going through the formalities of a traditional marriage.
In general, common-law marriage benefits include:
- Healthcare benefits, hospital visitation rights, and the right to make emergency medical decisions
- Access to personal records
- Rights in property division upon separation
- Child custody rights
- Spousal support rights
- Inheritance rights
- Tax deductions, including exemption from the gift tax for gifts to each other and deductions for mortgage interest if they co-own a house or have children
- Unlimited marital exemptions for their estate up to the federal estate tax limit
- Combining health insurance policies, which may reduce the amount paid in monthly premiums compared to individual policies
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Marriage requirements
West Virginia does not have a statute that specifically defines or regulates common-law marriages within its borders. However, the state does acknowledge common-law marriages legally established out-of-state.
To get married in West Virginia, couples must adhere to specific rules and requirements outlined in the West Virginia Code, particularly under Chapter 48 (Domestic Relations), Article 2 (Marriages). Here are the key requirements:
- Age of Consent: Both parties must be at least 18 years old to marry without parental consent. Minors aged 16 or 17 require written, notarized consent from their custodial parent(s) or legal guardian. If parents share custody, both must consent. For applicants under 16, a marriage license can only be obtained with a court order and parental or guardian consent. Additionally, a minor aged 16 or 17 cannot marry someone more than four years older.
- In-Person Application: Both parties must apply together in person at a County Clerk's office. Online or mail applications are not permitted.
- Place of Application: Residents of West Virginia should apply in the county where at least one of them resides. Non-residents can apply in any county within the state.
- Timing: Marriage licenses are issued during business hours at the County Clerk's office. There is a two-day waiting period for minors.
- Valid ID: Both applicants must provide proof of age with valid identification, such as a driver's license, passport, birth certificate, military ID, or West Virginia ID card.
- Previous Marriages: If either party was previously married, they must provide the exact date the prior marriage ended (via divorce, death, or annulment). Some counties may require a copy of the divorce decree if divorced within the last six months.
- No Blood Test: West Virginia does not require a blood test for a marriage license.
- Standard Fee: The base fee for a marriage license is typically $56 or $57. This fee can be reduced to $36 or $37 if the couple completes a premarital education course of at least four hours within 12 months before applying.
- No Blood Relation: Marriage is prohibited between individuals closely related by blood, such as parents, grandparents, siblings, aunts/uncles, nieces/nephews, etc.
- Intent to be Married: Both parties must intend to be married and not just living together as roommates.
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Validity of common law marriage
The validity of common-law marriage in West Virginia is a complex issue. While some sources state that West Virginia does not recognize common-law marriages, others suggest that the state recognizes common-law marriages under certain conditions. It is important to note that common-law marriage laws have never existed in West Virginia, and the state has specific marriage requirements.
However, in certain circumstances, West Virginia courts may recognize common-law marriages within divorce or settlement procedures. The court will consider several factors, including whether the couple cohabited in a state with common-law marriage laws and whether they met the requirements for marriage by habit and intent.
To validate a common-law marriage in West Virginia, the court will generally consider the following aspects:
- The two parties cohabited in an out-of-state jurisdiction that recognized common-law marriages.
- The date of declaring the specific type of marriage can be established by the court.
- Both parties must have the intent to be married and not just be living together as roommates.
- The couple must be of legal age and not be closely related by blood.
It is worth noting that the benefits of common-law marriage in West Virginia are similar to those of traditional marriage. Couples in a common-law marriage have the right to make medical decisions for each other, inherit from each other without a will, and receive spousal benefits such as social security and pension benefits.
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Divorce and settlement procedures
West Virginia does not recognize common-law marriages established within the state. However, if a common-law marriage is valid in another state, it will be recognized in West Virginia. This means that if a couple meets the requirements for a common-law marriage in a state where it is recognized, and then moves to West Virginia, their marriage will still be valid and recognized in their new state.
Now, if a couple needs to terminate their common-law marriage in West Virginia, they must follow the same divorce procedures as any other married couple in the state. Here are the steps involved in filing for divorce and reaching a settlement:
Firstly, one spouse must file a divorce petition with the family court in the county where they reside. This petition should include information such as the grounds for divorce, residency information, and details of any children from the marriage. West Virginia recognizes both fault-based and no-fault divorces. In a fault-based divorce, the filing spouse must provide evidence of marital misconduct, such as adultery, cruelty, or abandonment. In a no-fault divorce, the most common ground is "irreconcilable differences," which means the couple cannot get along and there is no chance for reconciliation.
Once the divorce petition is filed, the other spouse must be served with a copy of the documents. This can be done by a third party or through certified mail with a return receipt requested. After service is completed, the responding spouse has a certain number of days to file a response to the divorce petition. In their response, they may agree or disagree with the terms proposed by the filing spouse.
If there are disputes regarding property division, child custody, or support payments, the court may order mediation or a settlement conference. This process involves a neutral third party helping the spouses come to an agreement on these issues. Mediation can be voluntary or court-ordered, and it provides an opportunity for the couple to negotiate and reach a settlement outside of court.
If the spouses can reach an agreement through mediation or negotiation, they can submit a proposed settlement agreement to the court. This agreement should outline how property and debts will be divided, child custody and visitation arrangements, and any spousal or child support payments. The court will review the agreement to ensure it is fair and in the best interests of any children involved. Once the agreement is approved by the court, it becomes a legally binding document that both spouses must follow.
In the event that the spouses cannot reach an agreement, the case will go to trial, where a judge will make the final decisions on contested issues. The judge will consider factors such as the length of the marriage, each spouse's economic situation, and the needs of the children when determining property division and support payments. After the trial, the judge will issue a final divorce decree outlining the terms of the divorce, which may include alimony payments, child custody arrangements, and the division of assets and debts.
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Frequently asked questions
West Virginia does not have a statute that specifically defines or regulates common-law marriages. However, it is one of the states that recognize common-law marriages. The courts consider several factors in certain cases like divorce or separation proceedings.
For a common-law marriage to be recognized in West Virginia, the couple must have the intention to be married and not just be living together as roommates. They must also be of legal age and not be closely related by blood.
A couple in a common-law marriage in West Virginia has the same rights as those in a traditional marriage. They have the right to make medical decisions for each other, inherit from each other without a will, and receive spousal benefits such as social security and pension benefits.
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