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Checklist: Documents That Establish A Common Law Marriage

The concept of common law marriage has been recognized for many years in the United States. Essentially, in a common law marriage two parties create a valid marital relationship without the benefit of a legal marriage ceremony performed according to the statutory requirements of that particular state.

The foundation for a common law marriage is mutual consent or agreement of the parties to be husband and wife, and thereafter a mutual and open assumption of a marital relationship.

What if My State Doesn't Recognize Common Law Marriages?

Even if you currently live in a state that doesn't specifically recognize common law marriages, you may be able to establish that one exists or existed if you used to live in a common law state and can offer written documentation.

Same-Sex Marriage and Common Law

Currently, only Iowa, Rhode Island and the District of Columbia recognize common law same-sex marriages. Most other common law states make the law gender-specific, so only a man and a woman can enter into a common law marriage.

Examples of documents that can be used to establish the existence of a common law marriage are listed below.

  • A personal affidavit stating when and where you and your common law spouse mutually agreed to become husband and wife; whether you were ever married, ceremonially or otherwise, to anyone else, and the details surrounding the end of any previous marriages (how they were ended, where, and when); and any other details that will help to establish the existence of a husband and wife relationship.
  • Affidavits from other persons who know you and are familiar with your relationship, setting forth particulars such as the length of time you lived together; your address(es); whether there was any public announcement of your marriage; and whether your friends, neighbors, and relatives regard you as married.
  • Deeds showing title to property held jointly by both parties to the common law marriage.
  • Bank statements and checks showing joint ownership of the accounts.
  • Insurance policies naming the other party as beneficiary.
  • Birth certificates naming you and your common law spouse as parents of your child(ren).
  • Employment records listing your common law spouse as an immediate family member.
  • School records listing the names of both common law spouses as parents
  • Credit card accounts in the names of both common law spouses
  • Loan documents, mortgages, and promissory notes evidencing joint financial obligations of the parties.
  • Mail addressed to you and your common law spouse as "Mr. and Mrs."
  • Any documents showing that the wife has assumed the surname of her common law husband.
  • Church records indicating familial status, including membership information, baptismal certificates of the parties' child(ren), Sunday School registration forms, etc.

Consult an Experienced Family Law Attorney

Marriage laws are change constantly. If you have a question about the common law marriage requirements in your state, you may wish to contact a family law attorney for assistance. A good lawyer can advise you about the laws and any documents you may need to prove or disprove a common law marriage. Remember that it's important to speak to a lawyer familiar with the laws in your jurisdiction. Most offer free consultations, so your first step should be to contact an experienced family attorney.

Next Steps
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