Anaya Nolan
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 marriage, and a court may consider the validity of the marriage upon two conditions: the couple must have signed power of attorney papers while in the relationship, and the marriage must have been contracted in a state and district that recognized such a union according to their common-law marriage laws.
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What You'll Learn
West Virginia does not recognize common-law marriages
While West Virginia does not recognize common-law marriages, the state may consider the validity of a marriage in certain conditions. If the couple has signed power of attorney papers and the marriage was contracted in a state that recognizes common-law marriages, the court may recognize the union during divorce or separation proceedings.
The benefits of common-law marriage in West Virginia are similar to those of traditional marriage. These include 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. However, without a statute that specifically defines or regulates common-law marriage, the state evaluates each case individually to determine if the couple meets the requirements for marriage by habit and repute.
To establish a common-law marriage in West Virginia, several elements must be present. These include cohabitation, mutual agreement, public recognition, and intent to be married. While these factors are considered, an official marriage license is required for a couple to be legally recognized as married in the state.
In summary, West Virginia does not recognize common-law marriages within its borders. However, the state may consider the validity of such unions in specific circumstances, such as during divorce or separation proceedings. Couples seeking to establish a legal marriage in West Virginia should be aware of the state's specific marriage requirements and consult with legal professionals for guidance.
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Common-law marriage benefits
Common-law marriage, recognised in some US states, is a legal framework in which a couple who live together for an extended period is seen as legally married, even without a traditional ceremony or marriage license. Common-law marriages offer couples a way to enjoy the benefits of marriage without the complexities and expenses of a formal wedding.
Benefits of common-law marriage
- Legal recognition: Common-law marriages are legally recognised in certain US states, meaning couples can enjoy the same rights and responsibilities as formally married couples. This includes healthcare benefits, hospital visitation rights, the right to make emergency medical decisions, and access to personal records.
- Tax benefits: Common-law spouses may be exempt from gift taxes and can enjoy unlimited marital exemptions for their estate up to the federal estate tax limit. They can also claim deductions for mortgage interest if they co-own a house or have children.
- Social Security benefits: Common-law spouses may qualify for spousal Social Security benefits, including retirement, survivor, and disability benefits.
- Inheritance rights: In some states, common-law spouses are entitled to inherit their partner's property and assets, even without a will.
- Simplicity and cost savings: Common-law marriage eliminates the need for costly wedding preparations and paperwork, offering a streamlined and cost-effective alternative to traditional marriage.
Challenges and considerations
While common-law marriage offers several benefits, it also comes with certain challenges and considerations:
- Proof of marriage: Unlike traditional marriages, common-law marriages may lack a paper trail, making it challenging to prove marital status when filing taxes, claiming inheritance, or accessing certain benefits.
- Lack of public record: The absence of a formal record may cause difficulties in obtaining employment perks, such as family leave and bereavement leave, which are typically extended to married couples.
- Varying state laws: Common-law marriage is not recognised in all US states, and the requirements for establishing a common-law marriage vary from state to state. It is essential to understand the specific laws and requirements in your jurisdiction.
- Risk of no legal protection: If one partner denies the existence of the marriage or dies without a will, the other partner may be left vulnerable and without entitlements.
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Marriage requirements in West Virginia
West Virginia does not recognise common-law marriages formed within its borders, although it does acknowledge those legally established outside the state. The state has never had common-law marriage laws and has specific marriage requirements.
To obtain a marriage license 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 rules:
- Both parties must apply together in person at a County Clerk's office. Online or mail applications are not permitted.
- 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.
- The legal age to marry without consent is 18 years old. Applicants aged 16 or 17 require written, notarized consent from their custodial parent(s) or legal guardian. If parents share custody, both must consent; if one has sole custody, only that parent’s consent is needed. Those under 16 cannot obtain a marriage license unless a circuit court judge issues an order deeming it in the applicant’s best interest, accompanied by parental or guardian consent.
- If either applicant is under 18, there is a two-day waiting period after filing the application before the license can be issued, unless waived due to emergency or extraordinary circumstances.
- Both applicants must provide proof of age with valid identification (e.g. driver’s license, passport, birth certificate, military ID, or West Virginia ID card).
- If either party was previously married, they must provide the exact date the prior marriage ended (via divorce, death, or annulment). If divorced within the last six months, some counties may require a copy of the divorce decree.
- Marriage is prohibited between individuals related within certain degrees (e.g. parents, grandparents, siblings, aunts/uncles, nieces/nephews).
- The base fee for a marriage license is typically $56 or $57. The fee is reduced by $20 (to $36 or $37) if the couple completes a premarital education course of at least four hours within 12 months prior to applying and submits a signed, dated certificate from the provider.
The Marriage Ceremony
Your marriage may be solemnized by a family court judge, circuit judge, minister, priest, rabbi, or authorized representative of any religious organization. Religious representatives must be registered with the Secretary of State. Witnesses are not required to attend your marriage ceremony.
Your marriage license must be returned to the county clerk for registration by the sixth day of the next month that follows the ceremony. You can order a certified copy of your marriage certificate for $5 from the county clerk's office that issued your license.
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Validating a common-law marriage in West Virginia
Common-law marriage laws have never existed in West Virginia. However, the state does recognize common-law marriages in certain circumstances, such as during divorce or settlement procedures.
To validate a common-law marriage in West Virginia, the couple must meet several requirements. Firstly, both parties 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. Additionally, the couple must have cohabitated in a state that recognizes common-law marriages, and the marriage must meet the requirements of that state's common-law marriage laws.
To strengthen their case, couples are advised to sign power of attorney documents, including durable power of attorney and medical power of attorney, with the help of a qualified legal professional. These documents can be crucial in having their common-law marriage recognized by the state of West Virginia.
It is important to note that West Virginia does not have a specific statute defining or regulating common-law marriage. Instead, the state evaluates each case individually to determine if the couple meets the requirements for marriage by habit and agreement.
The benefits of a common-law marriage in West Virginia are similar to those of a 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. Common-law marriage provides a more accessible path to establishing legal rights compared to the formalities of a traditional marriage.
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Common-law marriage and property division
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 in certain circumstances. To establish a common-law marriage in West Virginia, the following elements must be present:
- Cohabitation: The couple must live together as husband and wife.
- Mutual Agreement: Both parties must agree that they are married and hold themselves out as such to the community.
- Public Recognition: The couple must be known as married to family, friends, and the community.
- Intent to Be Married: Both parties must intend to be married and not just live together as roommates.
In addition, the couple must be of legal age and not be closely related by blood.
When it comes to property division in a common-law marriage in West Virginia, the state is an equitable distribution state, meaning that marital property is subject to a fair, though not necessarily equal, division. If the divorcing spouses have a prenuptial agreement or other separation agreement, the court usually accepts it if it is fair to both parties. If there is no agreement or the arrangement is not fair to one party, a family law judge will make an equitable distribution of property.
If couples in recognized common-law marriages come to an agreement about the division of property in a future separation in an out-of-state jurisdiction, West Virginia may recognize such agreements. However, it is important to note that common-law marriage laws forbid this type of marriage, and a court may recognize the marriage within a divorce or settlement procedure only in certain circumstances.
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Frequently asked questions
No, West Virginia does not recognize common-law marriage. However, in certain cases, such as divorce or separation proceedings, the court may consider the validity of a common-law marriage contracted in a state that recognizes such unions.
A common-law marriage is a legal marriage that is informal, meaning the couple did not have a wedding ceremony and did not obtain a marriage license or certificate.
For a common-law marriage to be recognized in West Virginia, the couple must have signed power of attorney papers and entered into the marriage in a state that recognizes common-law marriages. Additionally, both parties must have the intention to be married and not just live together as roommates.
The benefits of a common-law marriage in West Virginia are similar to those of a 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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