Common Law Marriage FAQ

How do you know if you have a common law marriage? If you live with a roommate for five years, are you a married couple?

Generally, no.

Common law marriage can change the marital status of an unmarried couple to a legally married couple — even if the couple never had a formal wedding ceremony or a marriage license.

A valid common law marriage (informal marriage) requires that a couple:

• Live together (cohabitation) for a certain amount of time (one year in most states)
• Hold themselves out as a married couple
• Intend to get married

If you have a common law marriage, you could be entitled to the same benefits that other married couples have, such as:

• Shared insurance benefits
• Social Security survivor benefits
• Pension benefits
• The ability to file tax returns as "Married" jointly or separately

This article will answer the following questions:

• Which states recognize common law marriage?
• What if I don't want a common law marriage?
• Does my common law marriage legally change my last name?
• Can same-sex couples have a common law marriage?
• How do I get divorced after a common law marriage?
• What is the history of common law marriage?
• Get professional legal help with your common law marriage

Which States Recognize Common Law Marriage?

Only certain states recognize common law marriage. But all states recognize legal marriages from other states. Under the full faith and credit clause of the U.S. Constitution, states must honor out-of-state laws.

So an informal marriage is still valid when you move to a state that does not recognize common law marriages.

The following states fully recognize common law marriages:

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

See FindLaw's page Common Law Marriage States for information on states that partially recognize common law marriage.

What if I Don't Want a Common Law Marriage?

If you meet the legal criteria and live in a state that recognizes common law marriage but do not wish to get married as a matter of law, you should sign a written statement expressing this. The statement should explicitly state you and your partner are not married under common law in the state where you reside.

To prevent a common law designation, you should also file your taxes separately and manage your finances independently. Avoid shared bank accounts or credit cards.

Does My Common Law Marriage Legally Change My Last Name?

Your last name does not automatically change with common law marriage. But you can change your name (as long as it is for a legitimate, non-fraudulent purpose).

A marriage certificate can prove your name change. But, common law married couples do not have a marriage certificate or a marriage license, so they must ask (petition) the court.

The name change process varies by state. Generally, you file paperwork with the county clerk and pay the required fee to start the process. In some states, you can change your name merely by using your new name. That includes changing your name on:

• Accounts
• Memberships
• Identification documents
• Social Security

Many private entities also respect name changes by mere usage. But the threat of identity theft and fraud has led more companies to require legal documentation to change your name.

Note: You must have a name change document to change your name on some government documents like your passport. Name change documents include the following:

• Marriage certificate
• Divorce decree
• Court order

Can Same-Sex Couples Have a Common Law Marriage?

In some places, same-sex couples can establish a common law marriage. After Obergefell v. Hodges (2015), where the Supreme Court legalized same-sex marriage across the U.S., these couples could claim common law marriage. But, unmarried couples must be careful about their rights in places that do not recognize common law marriage.

Same-sex couples have the same legal rights in a common law marriage as other couples.

How Do I Get Divorced After a Common Law Marriage?

The divorce process is the same for everyone. If you are common law married, you will follow the same steps for divorce as married couples who are not common law married. There is no such thing as a common law divorce. You must still file for divorce in court.

As with many divorces, hiring an attorney is advisable because the court will have to decide:

• Child support and child custody
• Spousal support (alimony)
• Property division

What is the History of Common Law Marriage?

Common law marriage traces its roots back to England. In the past, many couples lived together and acted as husband and wife for a long period of time without an official ceremony. They were married in the eyes of the community. Over time, England's case law recognized these relationships.

As England colonized America, many of these practices, including family law related to marital status, found their way across the ocean. In a practical sense, it was hard to find someone qualified to perform marriages in the early days of the United States (particularly in the West).

The U.S. Supreme Court ruled in 1877 that certain unions lacking a marriage ceremony or official record are valid and enforceable marriages unless prohibited by state law.

But, as formal marriage became more popular, the number of states recognizing common law marriages dwindled.

Get Professional Legal Help With Your Common Law Marriage

Common law marriage laws are complex. Some states, like Colorado, Iowa, and Rhode Island, allow common law marriage. Other states like Alabama, Idaho, and Indiana only allow common law marriage before a certain date. Plus, common law marriage requirements are different in every state.

A common law designation can impact your eligibility for spousal benefits and estate planning. It can also complicate a breakup, which the law treats more like a divorce in certain states. 

Contacting an experienced family law attorney is a good idea to help you understand if you are common law married. An experienced attorney can help you determine your marital rights and obligations.