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Common-law marriage is a
form of legal marriage where the parties have not
submitted to a formal marriage proceeding.
Common law marriages are recognized by some U.S.
States, Canada and many European countries.
Normally, recognition of such a marriage does not
require legal documents to be completed but many
couples considered joined by such complete
protective documents with regards to their assets
and children.
Subjects of concern to those
legally married by common law marriage laws include
feeling they are in a trap and what alimony payments
could be required to their spouse should the
marriage dissolve.
Common law marriages are
recognized in all states where the marriage was
legally contracted in a state that permits such
marriages.
Presently only a hand full of states still permit
common law marriage. These states include,
Alabama, Colorado, the District of Columbia, Iowa,
Kansas, Montana, Oklahoma, Rhode Island, South
Carolina, Texas, and Utah. California does
not.
New Hampshire also recognizes such
marriages but only for purposes of probate.
The state only recognizes the marriage posthumously
when one of the parties to the marriage dies to
enable the surviving party to more easily inherit
the couple's assets. While the couple are both
living the state does not recognize the marriage.
Some states have just recently
abolished the creation of any new common law marriage contracts.
These include Georgia in 1997, Idaho in 1996, Ohio
in 1991 and Pennsylvania in 2003.
In Utah, a common law married
couple who has a marital
breakup must obtain a declaration of marriage from a
court within one year after the breakup. If
the couple does not obtain this declaration within
one year, the state will not recognize the validity
of the marriage and division of marital property
will be settled by a civil court as a contract
question rather than by the
family law court as
a divorce question. This distinction my create
serious differences in the disposition of property
for most couples.
In Texas, if a couple does not
establish the existence of a legal common law
marriage within two years after breaking up, the
marriage is considered to have never existed.
As a general rule, if a couple
holds themselves out to others as husband and wife,
then they will be presumed to be legally married
until proven otherwise. It does not matter if
marriage
vows have been taken by the
couple. Since
a couple considered married by common law marriage
does not have a certificate of marriage to prove the
marriage, they may be required to pass other tests
to prove they have a valid marriage. Although
the requirements to prove common law marriage vary
by jurisdiction, one or more of the following are
commonly required:
- The couple presents themselves to society as husband and wife.
- They must behave as husband and wife in
their daily lives.
- One party has changed their last name to
that of the other.
- The couple files tax returns under the
"married" status
- Both parties consent to the marriage and do
not feel coerced into the marriage.
- The couple has cohabitated for a specified
period of time.
- The couple has made a declaration of
marriage before a judge and it has been filed with
the county clerk.
An
engagement or agreement to be married at a future
date is generally considered evidence that the
couple is NOT married.
Although a couple may be permitted
to join into common law marriage, there are no
provisions for common law
divorce. A couple
legally married by common law marriage wishing to
divorce must file a petition for dissolution of
marriage just as if it were a traditional marriage.
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