Common Law Marriage
By Aaron Larson
Common law marriage is a marriage that results from the actions of a couple, despite the fact that they have not obtained a marriage license or fulfilled the requirements of a state's statutory marriage laws. This typically means that the couple has cohabitated for a period of time, usually a year or more, while having an agreement to be married and holding themselves out to the world as husband and wife.
Not every state permits common law marriages. For example, Michigan has elimated common law marriage by statute, and no period of cohabitation will result in marriage. At the same time, where a couple became married under the common law of a different state or country, their marriage is likely to be recognized even in a state such as Michigan. The "full faith and credit" rule of the U.S. Constitution ordinarily compels the recognition of a marriage made valid under the laws of a sister state.
As a result of the laws of different states, actions which can result in common law marriage in one state may not provide any legal rights or protections in another. While in one state, a common law spouse might be entitled to a share of the marital estate and even to spousal support, in a state which does not recognize common law marriage that person may not be able to lay claim to jointly acquired assets titled in their partner's name and won't be eligible for alimony or "palimony". Similarly, if cohabitation does not result in common law marriage, one partner may not have any say in how the other partner is treated in the event of disability, may not even have a right to visit their partner in the hospital, and won't have any right to inherit unless expressly named in the partner's will or estate plan. You should also recall that if your common law spouse becomes disabled or dies, it will be up to you to prove the validity of your marriage if your spouse's family excludes you from medical decision-making or tries to exclude you from inheriting property. In short, it pays to know the laws in your state and that if you want your relationship with your partner to be officially recognized, to take the steps necessary to give legal effect to the relationship.
In states which recognize common law marriage, once the requirements have been met the marriage is typically treated in exactly the same manner as any other marriage. By the same token, a valid common law marriage must typically be ended through a formal divorce process. At present, approximately eleven states and the District of Columbia still recognize common law marriages.
States Permitting Common Law Marriage
- District of Columbia
- Rhode Island
- South Carolina
States Permitting Certain Common Law Marriages
- Georgia (if the elements were satisfied before January 1, 1997)
- Idaho (if the elements were satisfied before January 1, 1996)
- New Hampshire (for inheritance only)
- Ohio (if the elements were satisfied before October 10, 1991)
- Pennsylvania (if the elements were satisfied before January 1, 2005)
In states which don't allow common law marriage, an unusual situation can arise - a couple which underwent what they thought was a valid, state-authorized marriage can find that their marriage was invalid. For example, a divorce may not be properly finalized before a subsequent marriage occurs, rendering that later marriage invalid. Usually, once the problem has been remedied, states will provide a remedy to correct the invalid marriage. For example, some states permit a secret wedding ceremony to be performed by a judge, with a backdated order of marriage, such that the marriage becomes valid from its inception and the rights of the spouses are protected.
Copyright © 2003-2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.