• Common Law Marriage Frequently Asked Questions

    Common Law Marriage Frequently Asked QuestionsWhat is common law marriage?

    A common law marriage is a marriage recognized as legally valid even thought it was established without a marriage license and an official ceremony. The requirements for establishing a common law marriage vary from state to state, but the common features are:

    - Cohabitation – the parties lived together
    - Consent – the parties intended to hold themselves out to the public as husband and wife
    - Holding out- the parties hold themselves out to the world as husband and wife, such as speaking of each other as husband and wife and their actions demonstrate that relationship
    - Neither party was married to someone else

    What are the requirements for a couple to have a valid common law marriage?

    A couple must do several things to have a valid common law marriage. The couple must live together for a significant period of time. What constitutes a significant period of time is not defined by any state but the longer the amount of time a couple has lived together, the more likely it is that they can have a valid common law marriage. Second, a couple must intend to be married. Third, a couple must present themselves as a husband and wife. Factors that could go into determining the third requirement include whether the man and woman use the same last name, if they refer to each other as husband and wife, whether they file a joint tax return, and whether they use the same credit cards.

    Is there a certain time period that we have to live together to be considered common law married?

    Most states do not have a time requirement for how long you must live together to be considered married, but some states do. It is important to check with the common law marriage requirements of your state. Typically the controlling issue is not the amount of time you have lived together, but your intentions of being considered husband and wife.

    Who decides if we have a common law marriage?

    Typically the court will decide if you have a common law marriage. The court will consider a number of factors in deciding whether or not you are common law married.

    They will consider actions taken as husband and wife, such as:
    - Buying property together
    - Signing deeds together
    - Taking our loans together
    - Holding joint bank accounts
    - Sharing a home
    - Having children together

    However, this determination generally only happens if you want to end the marriage or want to claim inheritance when one of the parties dies. If you seek to obtain benefits such as Social Security survivor’s benefits or similar benefits the agency will determine whether or not you are common law married. If the agency decides you are not married, you can appeal this decision to the courts. If none of the above circumstances takes place, then no one will officially declare you common law married.

    If we are considered common law married in one state, will our marriage be recognized in a state that does not recognize common law marriage?

    Yes. Despite the fact that your new state may not recognize common law marriage, under the Full Faith and Credit provision of the United States Constitution, your new state is required to recognize legal marriages consummated in another state under the state’s laws even though the common law marriage would not normally be recognized under your new state’s laws.
    For example, a couple that enters into a valid common law marriage in the state of Montana will still have their marriage recognized if they move to New York, even though a common law marriage cannot be entered into in that state.

    Can I change my name if my marriage is common law?

    Yes. However, this has nothing to do with your marriage because anyone can have their name changed in most states. Many states allow you to change you name by simply starting to use your new name without having to go to court. However, if you would like to legally change you name you will have to follow the name change requirements and procedures in your state. Check with your local court to receive the correct information about legally changing your name.

    Will our common law marriage affect our children?

    Generally no. If there is no question about who the mother and father are of the child or children, the child or children’s rights will be protected under state laws regardless of the status of your marriage. However, upon divorce, standard physical and legal custody issues will arise and be awarded as though a ceremonial marriage had taken place.

    If we have a common law marriage, and we want to end our relationship, do we have to get a divorce?

    Yes, once you have decided to be married, through a ceremonial marriage or a valid common law marriage you are married permanently, and you can only end it by a decree from the court. The marriage can be ended through a divorce or an annulment. If you have a common law marriage and file for divorce, the court will first have to decide if it agrees that you have a common law marriage before granting you a divorce. If the court establishes that you have a common law divorce, it will then decide typical divorce issues such as: custody of minor children of your marriage, property and debts, and alimony.

    What am I entitled at the end of a common law marriage?

    Due to the fact that divorces are the same no matter if you had a ceremonial marriage or a common law marriage, at the end of a common law marriage you are entitled to all the things you would be entitled to at the end of a ceremonial marriage. This includes all marital assets, debts, and possibly alimony.

    What states allow common law marriages?

    Alabama, Colorado, Kansas, Rhode Island, Oklahoma, Texas, South Carolina, Montana, Iowa, and the District of Columbia all permit common law marriage.

    What rights does a couple in a common law marriage have?

    A couple that is in a valid common law marriage enjoys the same rights and responsibilities as a couple that is married in a ceremony. Couples have the right to seek spousal support, alimony, and equitable division of marital property. Additionally, if the couple wants to terminate the relationship, they must do so by getting a divorce.

    Does Social Security recognize common law marriage in order to pay survivors and spouse's benefits?

    Social Security follows the laws of the state where the worker was residing at the time of death or the place where the worker is residing when the spouse applies for benefits. A common law marriage is valid if it is contracted in a state that recognizes common law marriages.
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