State Laws on Marriage

You may have questions before you get married. Marriage is the biggest step you'll make in life. There are personal factors to consider, but also legal factors you may not have thought about. Marriage affects any property you have now and anything you get in the future. It may impact your work or your school. If you have children, you will have an obligation for the rest of your life.

Getting Married in America: The Basics

Marriage in the United States is a matter of state law. Each state has its own requirements for marriage. The only federal law about marriage is that a marriage in one state is valid in every other state. State law determines:

• Minimum age for marriage without parental consent. For instance, Delaware, Pennsylvania, and South Carolina will not allow anyone under 18 to marry, even with parental consent.
• Residency requirements. A foreign national must live in the U.S. for at least three years. States have no residency requirements, but some states, like New York, allow anyone to get a license in any county. Others, like Ohio and New Hampshire, require the couples to get a license in the county where the ceremony will take place.
• Documents required for a marriage license
• Whether domestic partnerships or civil unions are valid
• Rules for divorce, separation, and other domestic relations

Some states, such as California, have more restrictive laws. Couples may need premarital counseling before marriage. Other states, like Nevada, allow anyone to tie the knot.

Types of Marriages

There are three types of marriage recognized in the United States. There are other types, but they are not legal, and the parties may violate state or federal law.

Civil Marriage

This is what most people mean when they speak of “marriage." It is sometimes called “legal" or “traditional" marriage. It may involve a formal marriage ceremony, but the couple must get a marriage certificate, and a judge or officiant will perform the ceremony. All states recognize civil marriage.

Common-Law Marriage

Common-law marriage comes from a time when traveling to a court or church was difficult. They were a couple if two people lived together and “held themselves out" as married. Eight states still recognize common-law marriage. Those states are:

• Texas
• Colorado
• Iowa
• Kansas
• Montana
• Oklahoma
• Rhode Island
• Utah
• District of Columbia

Other states will recognize their marriage if their state recognizes common-law marriage and if they prove their marriage is valid in that state.

Civil Union

Some states recognize civil unions, also called domestic partnerships, as an alternative to civil marriage. Civil unions provide most of the benefits of marriage at the state level. Same-sex couples used civil unions before the Supreme Court decision in Obergefell v. Hodges granted marriage rights to all couples at the federal level.

Marital Property Laws in the States

Each state has its own laws about marital property. These laws fall into community property states and common law or equitable property states.

Community Property

Nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) are community property states. All property acquired during the marriage is the property of both spouses and divided equally if the parties divorce.

Common-Law Property

The remaining states are “common law" property states. This is not related to common-law marriage. Common-law property is divided “equitably" or fairly in cases of divorce. The parties must decide between themselves how best to divide the property. If they are unable to agree, a judge must do so.

Marital property laws also affect income derived from rental property, pensions, insurance benefits, and other payment plans. When you're getting married, you need to consider the property laws of your state.

Unlawful and Prohibited Marriage

All states have laws about unlawful marriage. This is one area where the federal government has weighed in with laws against polygamy. Some types of unlawful or banned marriages include:

• Bigamy. If one spouse is married when they marry another person, they commit bigamy. Bigamy is illegal in all 50 states and the District of Columbia. The courts may allow cases where a person thought they were divorced, but the judgment was not recorded.
• Polygamy. Some religions, such as Mormonism and Islam, allow a man to have multiple wives. The United States does not recognize polygamy, even if all parties consent. Some states, such as Utah, may overlook polygamous relationships if all parties consent and none of them are children.
• Forced or fraudulent marriage. No state will recognize a marriage entered into by force or fraud. If one party claims they were coerced or tricked into marriage, it may be grounds for annulment.
• Underage marriage. All states have a marriage age of consent. Some states may allow children to marry with parental consent. Most states want the parties to be at least 16 to marry.
• Cohabitation. A fancy name for “living together." Cohabitation was once illegal in all states. As of 2023, only Michigan and Mississippi still had anti-cohabitation laws.

Same-Sex Marriage

Few issues have been more contentious in recent years than same-sex marriage. Until the first challenge in 1971, no state had any law specifically prohibiting two people of the same gender from marrying. Following the Supreme Court's decision in Baker v. Nelson, most states codified marriage as “between a man and a woman."

In 2003, Massachusetts became the first state to issue marriage licenses to same-sex couples. California followed in 2008. The 2015 Supreme Court decision Obergefell v. Hodges finally guaranteed marital rights for all same-sex married couples in America.

The Defense of Marriage Act and Respect for Marriage Act

In 1996, President Bill Clinton signed the “Defense of Marriage Act" (DOMA). This Act superseded all state laws and created a federal definition of marriage as “between a man as husband and a woman as wife." Conservative and religious activists who opposed gay and lesbian marriage created DOMA.

In 2022, President Joe Biden signed the Respect for Marriage Act, which provides federal recognition and protection for same-sex and interracial marriages. The Respect for Marriage Act responded to the backlash to Obergefell and was one of the few instances of the federal government intervening in state marriage laws.

Premarital Laws and Agreements

Before you get married, there are many things to get in order. It is a good idea to talk to a family law attorney or marriage counselor before you apply for a marriage license. They can tell you the documents you need and other things to remember.

Prenuptial agreements

Prenuptial agreements, or premarital agreements, are written before marriage in preparation for a possible divorce. Some legal experts advise against prenuptials because they make couples plan to end their marriage before it begins.

Most states have strict requirements on the drafting of prenuptials, including:

• It cannot be “unconscionable," meaning grossly unfair to one party.
• It must be voluntary. Any coercion, duress, or undue influence claim may void the agreement.
• Both parties must provide a full financial disclosure.
• Both parties must sign (many states require a notary's signature).
• There must be a waiting period between the delivery of the agreement and signing, so the parties can have it reviewed by an independent attorney. Some states, like California, have a statutory waiting period of seven days. Others only require a “reasonable" period.
• A prenup cannot include child support, custody, or visitation. If you include them, be aware that a judge will ignore your agreement if you divorce.

Finally, many states require that the terms of a prenuptial agreement cannot "encourage" divorce. That is, the prenup should not make divorce a more attractive option than staying married. A judge will interpret this, and it is a good reason for having your prenup reviewed by an attorney before signing.

Waiting Periods and Counseling

Many states now require waiting periods after the clerk issues the license and the wedding ceremony. This gives the parties a last chance to consider the marriage. Waiting periods vary from two or three days in Maryland, Louisiana, and Texas to five days in Minnesota.

Some states also recommend premarital counseling. This lets the couple discuss any concerns they may not have talked about with a neutral third party and talk about future expectations. At present, only Colorado mandates such counseling, but California and Arizona require it for minors who want to marry.

Some states, including Oklahoma, Texas, and Tennessee, will discount or waive the marriage license fee if the couple attends marriage counseling before the wedding.

Documents for a Marriage License

It's a good idea to have all your paperwork in order before heading to the county clerk's office and filing for a marriage license. Each state has different laws, but every state will want you to present the following:

• Birth certificate
• Driver's license
• Social Security card or Social Security number
• Passport or proof of residency if not a citizen
• Blood test (not all states need this)

You should check with your state and county when planning your marriage ceremony. Each jurisdiction is slightly different. For instance, Alabama does not require witnesses or a waiting period for your marriage, so you can get married right away.

Divorce and Dissolution: Post-Marital State Laws

Unfortunately, not all marriages last till death. Statistics show that about half of all marriages end in divorce. There are a few ways to terminate a marriage by court order if your marriage is not what you hoped it would be.

Annulment

An annulment ends a marriage that was invalid or which legally never existed. For instance, a bigamous marriage, or a marriage entered into by fraud or coercion, could be annulled on the grounds it was invalid. Other grounds for annulment include:

• “Insanity" is an old-fashioned term meaning one party was legally unable to consent at the time of the marriage. “Insanity" is now incapacity.
• Incapacity due to age or mental illness. Anyone under 18 years of age cannot lawfully sign a contract in the U.S., so they cannot marry without parental consent. Likewise, a person adjudicated mentally incompetent due to dementia or other disabilities would not be able to marry without consent.
• Intoxication. Intoxication is like incapacity and being too drunk or impaired by drugs to consent to marriage reasonably.
• Incest. All states have incest prohibitions, usually brother/sister, father/daughter, and first cousins.
• Sham or mock marriages. These used to happen to legitimate children. Today they are often “green card" marriages. Courts will annul most sham marriages, but the parties may sign a waiver if the couple married for the sake of an illegitimate child.

If you believe you have such a marriage, you should contact a family law attorney right away.

Legal Separation

Sometimes a married couple does not want a divorce but can't live together amicably. In that case, a legal separation is an alternative. A legal separation provides some of the benefits of a divorce, such as division of property. It also lets the couple keep their spousal rights and decision-making abilities.

Some states, such as North Carolina, require a separation period before granting a divorce. You will need a court order to restore your marriage if you get a legal separation.

Divorce

Unlike separation, divorce ends a marriage permanently. Once the divorce is final, the couple is no longer married and may go their separate ways. Divorce used to require parties to prove infidelity or abuse. But after the no-fault divorce began in 1970, married couples could part ways before domestic violence or adultery became an issue.

All states have their own laws about property division, child support, and spousal support. Nobody wants to plan their divorce before their wedding ceremony. Still, it is a good idea to talk to a family law attorney if you have any questions or concerns about post-marriage issues.

Discuss Your Questions About State Laws on Marriage with an Attorney

The laws on marriage and property owned during marriage vary from state to state. This can complicate things during a divorce or the death of a spouse. If you have lived in different states, you may need help from a family law attorney.

Discuss Your Questions About State Laws on Marriage With an Attorney

The laws on marriage and property owned during marriage vary from state to state. This can complicate things during a divorce or the death of a spouse, especially if you've lived in different states. You can learn more about the laws that apply to your marriage, and prevent problems from arising, by speaking with a local family law attorney.