Kara Sears
Common-law marriage is a legally recognized marriage between two people who haven't purchased a marriage license or had a ceremony officiated by a licensed marriage officiant. Common-law marriages are currently recognized in 15 states and Washington, D.C. Each state has its own rules and requirements for common-law marriages, and couples must meet certain criteria to be considered common-law married. To prove a common-law marriage, couples may need to provide various documents, such as affidavits, property deeds, tax returns, and insurance policies. If there is a dispute about the existence of a common-law marriage, it may be necessary to go to court to prove the marriage, and some states have statutes of limitations on these types of proceedings. Ending a common-law marriage is similar to ending a formal marriage, and couples must file for divorce in states that recognize common-law marriages.
| Characteristics | Values |
|---|---|
| Number of states that recognize common law marriages | 7 or 9 states and the District of Columbia |
| States that recognize common law marriages | Colorado, Texas, South Carolina (as of 2019) |
| Requirements for common law marriage | Proof of cohabitation, documents showing a long-term domestic partnership, affidavits, property deeds, tax returns, insurance policies, etc. |
| Termination of common law marriage | Death or divorce |
| Filing taxes for common law spouses | Common law spouses can't file joint tax returns with the IRS if they live in a state where common law marriage isn't recognized |
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What You'll Learn
Affidavits and other documents
An affidavit of common-law marriage is a legal tool that validates a couple's relationship in the eyes of the law. It affirms their commitment and provides essential protections regarding property rights and inheritance. Couples can use affidavits to establish their marital status, especially in jurisdictions that recognize common-law marriages. By signing this document, couples can simplify legal processes, such as property disputes and inheritance cases.
There are two main types of affidavits that can be used to prove a common-law marriage: personal affidavits and friend and family affidavits. In a personal affidavit, the couple swears under oath that they are married and includes details such as the date and location where they mutually agreed to become spouses, previous marriages, and any other relevant information. Friend and family affidavits, on the other hand, are statements from individuals who know the couple and can attest to their relationship. These affidavits should include information such as how they know the couple, the length of time the couple has lived together, and whether there was a public announcement of the marriage.
In addition to affidavits, there are other documents that can be used to establish a common-law marriage. These include deeds showing joint ownership of property, bank statements and checks showing joint financial obligations, loan documents, leases, mortgages, and credit card accounts in both spouses' names. Church records, birth certificates, and documents showing a name change can also be used as proof. If no declaration was filed and there is a dispute about the existence of a common-law marriage, it may be necessary to go to court to prove the marriage, and legal advice should be sought.
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State recognition
The recognition of common-law marriages varies across different states in the US. Common-law marriage is a legally recognised form of marriage between two individuals who have not obtained a marriage license or participated in a ceremony officiated by a designated authority. While it is acknowledged in several US states, the specific requirements differ across each state.
Currently, common-law marriages are recognised in Colorado, Texas, and six other states, along with the District of Columbia. In Colorado, a common-law marriage is considered valid for all purposes and is equivalent to a ceremonial marriage. It can only be terminated by death or divorce. To be recognised as common-law spouses in Colorado, both parties must be legally eligible to marry, such as not being married to someone else, and their relationship must demonstrate a mutual agreement to be married, followed by conduct that manifests this agreement.
In Texas, common-law marriages are also acknowledged, and ending such a marriage is similar to terminating a formal marriage. If a common-law couple decides to separate, they must file for divorce within two years of their split. After this period, Texas law presumes that the common-law marriage never existed unless proven otherwise. To prove a common-law marriage in Texas, documents such as lease agreements, tax returns, insurance policies, and affidavits of informal marriage may be required.
It is important to note that the recognition of common-law marriages has been evolving, with some states discontinuing this practice over time. For instance, Massachusetts stopped recognising common-law marriages as early as 1646, while South Carolina more recently ended this recognition in 2019.
If a couple's relationship began in a state that recognises common-law marriage, all other states will also acknowledge their marriage as valid. Conversely, if their relationship started in a state that does not recognise common-law marriage, they must ensure that their current state of residence accepts such marriages. In states that do not recognise common-law marriages, couples may still be able to establish their union if they can provide written documentation of previously residing in a common-law state.
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Court proceedings
Firstly, both partners must have the legal right or "capacity" to marry. This means that they must be at least 18 years old, of sound mind, and not already married to someone else.
Secondly, both partners must intend to be married. This means behaving as a married couple and holding themselves out to friends, family, and the public as being married. This can be proven through affidavits from people who know the couple and are familiar with their relationship. Friends and family can include details such as how long the couple has lived together, whether there was a public announcement of the marriage, and whether they refer to each other as husband and wife.
Thirdly, the couple must live together for a period of time (cohabitation). While there is no statutory requirement for the length of time, the longer a couple lives together, the stronger their case is for common-law marriage.
Other documents that can be used to prove a common-law marriage include:
- Deeds showing title to property held jointly by both parties
- Bank statements and checks showing joint ownership of accounts
- Loan documents, leases, mortgages, and promissory notes showing joint financial obligations
- Driver's license or Social Security card showing a name change that matches the spouse's name
- Birth certificates naming both spouses as parents of a child
- Any documents showing one spouse has assumed the surname of the other
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Property and finances
Common-law marriage is an informal type of marriage without a marriage license or certificate. It is fully recognized in seven states and the District of Columbia. The concept has existed since the United States began, but states have slowly stopped using it over time.
If a common-law couple in a state that recognizes such marriages decides to split up, they must file for divorce. If court proceedings are not filed within two years of the separation, it is presumed that the marriage never existed unless proven otherwise.
To prove a common-law marriage, couples can use documents such as lease agreements, tax returns, insurance policies, deeds showing joint ownership of property, bank statements, loan documents, mortgages, credit card accounts, and affidavits. Friends and family can also provide affidavits to prove the marriage.
In terms of property and finances, common-law marriages are treated differently depending on the state. Most states are common-law property states, which means that property acquired by one member of a married couple is owned solely by that person unless the property is in both spouses' names. In community property states, assets acquired during a marriage are considered community property and belong to both spouses. Only nine states recognize community property: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Three other states—Alaska, South Dakota, and Tennessee—are "opt-in" community property states.
It is important for couples to discuss financial matters before and during their marriage to set clear financial expectations and plan for the future. If a couple has substantial assets or debts before marriage, they may want to consider a prenuptial agreement to detail what each spouse will retain separately in the event of a divorce. A prenuptial agreement can also address inheritance rights for children from a prior marriage and separate business assets. If a couple did not enter into a prenuptial agreement, they may be able to enter into a postnuptial agreement after marriage.
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Divorce
The process of filing for divorce from a common-law marriage can be complex and varies depending on the state. Common-law marriages are not formally established through a marriage license or ceremony, and not all states recognize them. This means that, in some cases, the first step to getting a divorce is proving that the marriage existed. This can be done through evidence such as cohabitation, shared finances, or public acknowledgment of the relationship.
In Texas, for example, common-law marriages are recognized and can be ended in the same way as a formal marriage. This involves filing a petition for divorce with the court and serving your spouse. The judge will then make decisions about property division, child custody, and spousal support. It is important to note that if court proceedings are not filed within two years of separation in Texas, the law presumes that the common-law marriage never existed unless proven otherwise.
In states that recognize common-law marriages, the divorce process is similar to that of a traditional marriage. The couple must first establish the validity of their common-law marriage in court, and then file a formal petition for divorce, outlining reasons for the divorce and addressing any pertinent issues such as property division, alimony, and child custody. All states allow spouses to use a no-fault divorce process, which is generally faster, less expensive, and less stressful than a contested, fault-based divorce.
To navigate the complexities of common-law divorce, it is advisable to consult with an experienced family lawyer who can provide guidance based on the specific circumstances and state laws. Additionally, a financial advisor can help individuals understand the potential financial impact of the divorce and plan for the future.
It is important to note that, even if a couple separates without obtaining a legal divorce, they are still legally married. This means that they cannot remarry without violating bigamy laws and may face legal consequences. Therefore, it is crucial to follow the appropriate legal procedures to officially dissolve a common-law marriage.
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Frequently asked questions
The Texas State Law Library provides information on common-law marriage.
Colorado Legal Services provides free legal aid and information on common-law marriage.
The State Law Library in each state should be able to provide information on common-law marriage in that state.
Documents that prove a long-term domestic partnership can be used to prove a common-law marriage. These include lease agreements, tax returns, insurance policies, deeds showing joint ownership of property, bank statements, loan documents, mortgages, credit card accounts, and affidavits.
