Common Law Marriage

[Jb74]

My question involves marriage law for the State of: Montana/Illinois.

For nearly four years during the span of 1992-1996, I lived with my girlfriend and we had a child together, I was age 17-21, she was 16-20. During which time we did live in Montana which does recognize common law marriage.

My girlfriend did not change her name to mine, we never said nor claimed to be publicly married, we didn't wear rings etc. She used her birth name. We never declared we were going to get married, we didn't refer to each other as husband or wife.
However, one year, we did file taxes jointly, which maybe is a whole other issue.

We broke up in Jan of 1996, I moved to Illinois, my ex-girlfriend moved in with another man in Montana right after we broke up and proceeded to have 3 children with him and still living together in 2009.

I got legally married in a church,with a license, 1997 in Illinois in front of 100 people, (still am,happily) my wife did change her name, everyone knows were are married. We have 2 children together. Filed joint tax returns since being married.

I never really have thought about that old relationship and any possible ramifications of being young and dumb until recently I became aware of common law marriages.

I'm scared to even ask this question, but am I really legally married to my wife of 12 years?

[Jb74]

This is from the Montana State Website. Id like an outside opinion, it appears to me I was NOT common law married.

Competency is the same for a common law marriage as with any other form of marriage in the state - Of age, MCA 40-1-202, not already married, not between person related to a certain degree, not between persons of the same sex, MCA 40-1-401. Both parties had the mental capacity and neither was under the influence of an incapacitating substance, MCA 40-1-402. Mutual arrangement and agreement means that the two people form the present intent to be married and express it to one another. How it is expressed will vary from marriage to marriage. The agreement may occur privately without anyone else present or it may be witnessed by many. However, two people cannot just slide into an unintended common law marriage.

The cases in Montana have mainly been concerned with the final part of the test, cohabitation and public repute. There is no bright line in these cases. Cohabitation, living together, is one issue that the Court will look at, but it alone is not the determinative factor. There is no specific length of time. Keeping different last names is not proof positive one way or the other. Maintaining separate financial accounts or having joint accounts may not matter. A common law marriage will not be found where it was kept secret from the community. The parties must present themselves as husband and wife openly. The court looks at all the facts which are presented and at the various competing public policies of the State of Montana.

Two competent individuals could live together their whole adult lives and never form a common law marriage - if they never said to the community at large that they were husband and wife, never acted as if they were a “married couple” rather than a pair, and never said to each other “we are married”.