Keith Mack
Common-law marriage, also known as informal marriage, is a union between two individuals without a formal marriage license. In the United States, many states recognize common-law marriages, but does Kentucky? As of 2021, only eight states allow common-law marriages, and Kentucky is not one of them. While Kentucky does not recognize common-law marriages contracted within the state, it does recognize those that are valid in the state in which they were contracted. This means that if a couple moves to Kentucky from a state that recognizes their common-law marriage, they will still be considered married in Kentucky. However, couples in Kentucky who claim a common-law marriage do not receive the same legal rights and protections as legally married couples.
| Characteristics | Values |
|---|---|
| Common law marriage in Kentucky | Does not exist since 1998 |
| Common law marriage outside Kentucky | Recognized in Kentucky |
| Divorce for common-law couples | Not accessible |
| Child custody and child support for common-law couples | Accessible |
| Property rights for common-law couples | Accessible |
| Business rights for common-law couples | Accessible |
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What You'll Learn
Common-law marriage in Kentucky
Common-law marriage, also known as informal marriage, is a union between two individuals without a formal marriage license. It is a concept that has been recognised in many US states, including Kentucky. However, Kentucky passed a law in 1998 abolishing common-law marriages within the state. The law, KRS 402.005, states that "no common-law marriage shall be contracted in this state on or after January 1, 1990".
While the law does not affect common-law marriages established before 1990, it means that no new common-law marriages can be formed in Kentucky. This means that couples who claim a common-law marriage in Kentucky do not have the same legal rights as legally married couples.
Despite this, Kentucky does recognise common-law marriages that were contracted in other states or commonwealths. This is due to the Constitution's "full faith and credit" clause. So, if a couple moves to Kentucky from another state where their common-law marriage is valid, their marriage will still be recognised in Kentucky.
For couples in Kentucky who are not legally married but have children or shared property, there are still legal options available. Unmarried parents can petition the court for child custody and child support orders, and property rights can be handled by civil courts.
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Divorce and common-law marriage
Kentucky does not recognize common-law marriages contracted within the state. However, it does recognize common-law marriages that are valid in the state in which they were contracted. Therefore, if a couple has a common-law marriage that is recognized in another state, they can get a divorce in Kentucky.
Common-law marriage, sometimes called "de facto" marriage, occurs when a couple agrees to be married and presents themselves as a married couple to their community without undergoing formal state-sanctioned marriage procedures. While Kentucky does not recognize common-law marriages originating within the state, it does allow couples in these marriages to seek court orders for child custody and child support. Additionally, if a couple owns property together, they may have contract or property rights that a civil court can handle.
Unmarried cohabiting parents in Kentucky can petition the court for sole or joint custody and child support orders, just like married couples. However, property rights laws affect married and unmarried couples differently. Married couples can have their property divided at the termination of their relationship, while unmarried couples cannot. This is because property rights are not considered to accrue from anything less than a legal marriage in Kentucky, which would effectively institute common-law marriage.
In summary, while Kentucky does not recognize common-law marriages contracted within the state, it does allow couples in these marriages to seek legal support during a breakup, particularly regarding child custody and support, as well as potential contract and property rights. For couples with a common-law marriage recognized in another state, they can get a divorce in Kentucky and have their marriage formally adjudicated.
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Child custody and support
In Kentucky, child custody and support are governed by KRS 403.211, KRS 403.212, and KRS 403.213. The courts typically rely on the Kentucky Child Support Guidelines to determine the appropriate amount of child support. However, if the parties' combined gross monthly income exceeds the uppermost levels of the child support chart, attorneys may request that the court deviate from these guidelines.
Kentucky family law prioritises the best interests of the child when determining custody arrangements. The courts generally presume that parents should have joint custody and equal parenting time, unless there are valid concerns such as an order of protection against one of the parents. In such cases, the judge decides on custody based on what is deemed best for the child. The court may consider the child's preferences, depending on their age, but the ultimate decision rests with the judge.
Kentucky law recognises different types of custody: legal custody, referring to the right to make important decisions about the child's welfare, education, and medical care; and physical custody, which pertains to the child's living arrangements. Custody can be either sole or joint. In joint custody arrangements, parents share decision-making responsibilities for major life choices, while everyday decisions are typically left to the parent with physical custody of the child at that time.
Unmarried parents in Kentucky have the same rights as married parents regarding child custody and support. They can petition the court for sole or joint custody, request or modify timesharing arrangements, and establish, modify, or terminate child support orders. Additionally, if a common-law marriage is recognised in another state, Kentucky will also recognise it and allow court action for child custody and support.
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Property rights
Kentucky does not recognize common-law marriages contracted within the state. However, it does recognize common-law marriages that are valid in the state in which they were contracted.
In terms of property rights, Kentucky follows the separate property statute. This means that all property acquired before the marriage, or after the date of divorce filing, is considered separate property. It may also include property acquired during the marriage through gift, inheritance, or bequest. Marital property, on the other hand, includes property acquired by either spouse during the marriage, property acquired before the marriage where the title is held by both spouses, and property acquired before the marriage that has increased in value due to marital contributions.
Kentucky courts attempt to divide marital assets equitably, but not necessarily equally, between divorcing spouses. The Community Property Trust Act, enacted in 2020, allows married couples to designate their property as community property, which can be protected from step-up taxes for estate planning purposes.
For unmarried couples, property rights laws differ significantly. Unmarried couples are free to contract between themselves to secure rights similar to those of married couples, or to determine a property division arrangement in the event of a breakup.
Kentucky law also recognizes the concept of adverse possession, which allows trespassers who encroach on another's land for a minimum period (15 years) to develop an ownership claim to the property.
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Legal rights and obligations
In Kentucky, common law marriages are not recognised for couples who live in the state. This means that living together does not make a couple legally married. A wedding is only considered legal if the couple has a valid Kentucky marriage license. However, if a couple is considered to be in a common-law marriage in another state, this will be recognised in Kentucky.
Kentucky law states that:
> "No common-law marriage shall be contracted in this state on or after January 1, 1990."
Despite this, couples in common-law marriages may have other options for legal support if they separate. If a couple owns property together, they may have contract or property rights that a civil court can handle. Additionally, they may have rights under the commonwealth's business laws, depending on how they manage their finances.
In terms of child custody and child support orders, Kentucky courts can address these matters for couples separating, regardless of their marital status. This is largely because the laws focus on the child's best interests rather than the parents' status. An unmarried cohabiting parent can petition the court for sole or joint custody, request or terminate formal timesharing, or award, modify, or terminate an existing child support order.
Kentucky has a three-tiered court system, with the District and Circuit Courts acting as trial courts. Generally, rulings on matters of law can be appealed, but findings of fact cannot. There are two appellate courts: the Court of Appeals and the Supreme Court, which is the highest court.
The state of Kentucky also devolves some powers to its counties and municipalities to make local laws affecting matters like zoning, noise pollution, and fire safety. Additionally, Kentucky's administrative agencies play a crucial role in fleshing out broad legislation passed by the legislature, with regulations carrying the same force as laws.
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Frequently asked questions
No, Kentucky does not recognise common-law marriages contracted within the state. However, if a couple had a common-law marriage in another state, they will automatically maintain their common-law marriage in Kentucky.
Although common-law couples in Kentucky might not have access to divorce courts, they could seek court action to receive child custody and child support orders. They may also have contract or property rights that a civil court can handle.
Common-law marriage, also known as informal marriage, is a union between two individuals established without a formal marriage license. It does not require a ceremony or a religious or legal authority to officiate.
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