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Common Law Marriage

Learn About Common Law Marriage
And How It Affects You

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:

  1. The couple presents themselves to society as husband and wife.
  2. They must behave as husband and wife in their daily lives.
  3. One party has changed their last name to that of the other.
  4. The couple files tax returns under the "married" status
  5. Both parties consent to the marriage and do not feel coerced into the marriage.
  6. The couple has cohabitated for a specified period of time.
  7. 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.

 

Common Law Marriage Best Sellers from Amazon.com

Living Together: A Legal Guide for Unmarried Couples
by Ralph Warner Attorney, Toni Ihara Attorney, Frederick Hertz Attorney
Amazon Price: $23.09
Customer Review: The best resource I've found for unmarried couples. I read a few others, but this one had all the info I wanted, was well-organized and useful. Worth the price for sure, especially for the legal templates included on CD.

Unmarried to Each Other: The Essential Guide to Living Together as an Unmarri...
by Dorian Solot, Marshall Miller
Amazon Price: $15.26
Customer Review: I love this book, its so informative. It covers pretty much everything about being in an unmarried partnership. Mostly it focuses on straight relationships, although there are some areas about gay couples. But mostly it focuses on straight relationsh...

Living Together: Myths, Risks & Answers
by Mike McManus, Harriett McManus
Amazon Price: $16.99
Customer Review: I bought this book because my mom is cohabiting. While it targets parents who's children are cohabiting more, I still found it to have plenty of current, useful statistics. The book used statistical, logical, and scriptural arguments, balancing the...

Happily Un-Married: Living Together and Loving It!
by John Curtis
Amazon Price: $13.22
Customer Review: Reviewed by Tammy Petty Conrad for Reader Views (9/08)

First, you can't walk away from this title. We all know the saying "they were married happily ever after." Of course we also know the statistics that less than half of us actually a...

Financial Fitness for Living Together
by Elizabeth S. Lewin
Amazon Price:


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