What is Common Law Marriage?

In the United States, common law marriage has been in existence since the horse and buggy days of 1877. While it might sound like an archaic form of marriage, it's still technically around today in one form or another in 10 states and the District of Columbia. Additionally, five states recognize common law marriage with some restrictions.

This article discusses the meaning of common law marriage, which states recognize them, how you enter into one, and what factors courts use to determine whether one exists.

What is Common Law Marriage: A Definition

A common law marriage is one in which the couple lives together for a period of time and holds themselves out to friends, family and the community as "being married," but without ever going through a formal ceremony or getting a marriage license. Below are three of the common requirements for most states (note that just "living together" isn't enough to validate a common law marriage).

1. You must live together (amount of time varies by state).

2. You both must have the legal right or "capacity to marry".

  • Both must be 18 years old (varies by State).
  • Both must be of sound mind.
  • Both must not be married to someone else.

3. You both must intend to be married.

4. You both must hold yourself out to friends and family as being a married couple.

  • Taking the same last name.
  • Referring to each other in public as "husband," "wife," or "spouse."
  • Holding joint bank accounts / credit cards.

States that Recognize Common Law Marriage

The following list of states fully recognize common law marriage:

States with Limited Recognition of Common Law Marriages

The following states formerly recognized common law marriages, and will generally still recognize them if couples satisfied all the requirements before such marriages were banned.

  • Georgia (if created before January 1, 1997)
  • Idaho (if created before January 1, 1996)
  • New Hampshire (for inheritance purposes only)
  • Oklahoma (if created before November 1, 1998)
  • Ohio (if created before October 10, 1991)
  • Pennsylvania (if created before January 1, 2005)

What is Common Law Marriage: Other Concerns

Even if you don't have capacity to marry at the point that you start living with someone, you can still end up in a common law marriage. This could happen if you or your partner get a divorce with a former spouse while you're living together in a common law marriage state; or you move in with someone who's married, and their spouse dies while you're living with them. In both cases, you lacked the capacity to marry at the time you moved in with your partner, but gained the capacity back through the divorce or death of your spouse.

Once established, a common law marriage is just as valid and binding as a formalized marriage. It lasts until a court grants a divorce or one partner dies. If your partner (and presumptive spouse) dies before you've legally established your common law marriage, you'll have to prove your marriage to be able to inherit and receive insurance benefits, Social Security Survivor's Benefits or pension benefits.

How to Tell If a Common Law Marriage Exists

Generally speaking, the strongest evidence that both partners intended to be married would be a written agreement between them to that effect. Ultimately, however, you only know for sure that a common law marriage exists when a judge says so.

Here are some factors that a court would look at to determine if you are or were in a common marriage:

  • Did you two live together?
  • Did one partner use the other partner's last name?
  • Did you sign contracts together to buy a home? A car?
  • Did you file joint tax returns?
  • Did you have joint bank accounts?
  • Did you each refer to each other as spouses?
  • Did you share household duties and expenses?
  • Did you have and raise children together?

Get Professional Legal Help with Your Common Law Marriage

If you and your long-term partner are living together but not married, you may have some questions about the legal implications of your relationship including the meaning of "common law marriage" in your state. Since everyone's situation is different, you could benefit from speaking with an attorney. Find an experienced family law attorney near you for peace of mind today.

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