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Common Law Marriage

What is Common-Law Marriage in the U.S.?

A common-law marriage is a legal union between two unmarried partners who live together, share marital obligations, and present themselves to the public as married. Partners in a common-law marriage have no marriage license or marriage certificate and have not performed marriage rites.

Couples may consider establishing common-law marriages to enjoy certain legal entitlements and benefits accessible to married partners while avoiding marriage costs and other related requirements. Although benefits may differ between states, common-law married partners may enjoy the following rights:

  • Tax exemptions or deductions
  • Spousal support
  • Social security benefits
  • Hospital visitation rights
  • Alimony
  • Healthcare benefits
  • Property division rights
  • Child custody
  • Inheritance
  • The right to resolve emergency medical situations on partner’s behalf
  • Prison visitation rights

Common-law marriages also have a few disadvantages. Couples considering this type of union should consider the following:

  • Common-law marriages may be difficult to prove. Parties who need to prove the existence of a common-law marriage may find it difficult to produce tenable evidence. This is because many states do not have official documentation that functions as the common-law equivalent of a marriage certificate.
  • Common-law marriages established in the United States may be null and void in other countries. In most cases, the couple must comply with the requirements of the common-law equivalent in the new jurisdiction or establish a traditional marriage.

Marriage in the U.S.

In 2019, the United States had a marriage rate of 6.1 marriages per 1,000 persons and a divorce rate of 2.7 per 1,000 residents. Statistics also show that in 2020, 68.43 million males were married, compared to 69.34 females. In the same year, 40.87 females were never married, lower than the 45.96 million recorded for males.

Does the Federal Government Recognize Common-Law Marriage?

The federal government recognizes all common-law marriages established in states where this type of union is still valid. Regardless of individual state laws, the U.S. constitution’s Full Faith and Credit Clause requires all states to recognize common-law marriages established in states with supporting laws. The federal government also recognizes other alternatives available in states with supporting laws. Partners may consider cohabitation agreements, domestic partnerships, civil unions, and reciprocal beneficiaries, depending on the available option in their states of residence.

What states recognize common law marriage?

As of 2021, nine states and the District of Columbia have laws that support the establishment of common-law marriages. Supporting states that recognize the creation of common law marriages include

  1. South Carolina
  2. New Hampshire
  3. Rhode Island
  4. Texas
  5. Montana
  6. Kansas
  7. Iowa
  8. Colorado
  9. Utah

What is a Cohabitation Agreement?

A cohabitation agreement is a contractual agreement between two persons living together and splitting split marital duties while unmarried. Persons looking to establish a legal union without a conventional or common-law marriage can create a cohabitation agreement that outlines each person’s responsibilities during the relationship. A cohabitation agreement should also include asset and property sharing methods, or specifics to be enforced if the parties end their relationship. Partners establishing this type of contract should specify the following:

  • A list of assets and properties each person owned before the relationship began
  • Method of establishing ownership of all assets acquired during the relationship
  • Conflict resolution methods
  • The formula for splitting duties and responsibilities, including debt, income, and expenditure
  • Asset and property sharing formula enforceable at the end of the relationship
  • Management of financials, including investment accounts, credit cards, insurance policies, and bank accounts
  • Possible buyout provisions if one partner is interested in purchasing the other’s assets
  • Punishment for any violation of the agreement

What is a Domestic Partnership?

A domestic partnership is similar to a common-law marriage as it involves two adults who live together and share responsibilities as they would in a conventional marriage. The main difference is that while the federal government recognizes common-law marriages established in states with supporting laws, it does not recognize domestic partnerships in the same way. Generally, the benefits of domestic partnerships may not be applicable outside the state of creation. For example, domestic partners cannot use a marriage filing for federal tax purposes.

As of 2021, domestic partnerships are valid in six states and the District of Columbia. The states include California, Oregon, Wisconsin, Maine, Washington, Nevada. Hawaii law supports a similar arrangement called a Reciprocal Beneficiary Relationship. Although this type of relationship has identical eligibility requirements with common-law marriage, Hawaii only affords this option to persons who are legally prohibited from marrying each other.

What Are the Requirements for a Common-Law Marriage in the U.S.?

The conditions required to establish a common-law marriage differ between states. Nonetheless, most states require the following:

  • Each partner is of legal age. Some states may allow younger persons to create a common-law marriage with a parent’s permission or court order. In some cases, state law may require both for partners younger than 16 years old
  • Both partners live together
  • Both partners present themselves to the general public as married
  • Each partner is unmarried and is not in a similar union with anyone else
  • Both partners are not related to each other in a way that would void the union according to the state’s law
  • Both partners provide wilful consent

Some states have additional conditions to the requirements for a common-law marriage. For instance, Texas law states that both parties must be ready to begin their relationship immediately. Texas law does not validate a couple’s agreement to marry in the future.

Additional requirements are also applicable in Michigan. Since the state does not recognize common-law marriages, Michigan requires common-law partners relocating to the state to draft a durable power of attorney, allowing either party to represent the other if one person is incapacitated or deceased. Michigan law also states that common-law married partners must draft a medical power of attorney so that one party can make medical decisions on behalf of the other. Information on common law marriages in different states can be found below.

How Many Years Do You Have to Live Together for Common-Law Marriage in the U.S.?

The duration of cohabitation required to create a common-law marriage depends on each state’s law on such unions. For instance, Texas recognizes common-law marriages but does not provide a cohabitation requirement. The state will recognize a common-law marriage where the couple lived together for a short time if the union meets other requirements. In other states where common-law marriages are not recognized, the state may consider any such requirement provided in the jurisdiction where the couple established their union.

What Does It Mean to Be Legally Free to Marry In the U.S.?

Partners who are legally free to marry have met their state’s requirements for establishing the union. States have individual requirements for marriage which ensure that both parties understand the union and have the capacity to marry. A common requirement is that each party should be at least 18 years old and unrelated to the other person. Parties must also be unmarried and not in a common-law marriage, domestic partnership, or similar arrangement with another party. Persons who were previously married must provide divorce certificates or divorce decrees. A partner who has a deceased spouse must submit a death certificate.

What is "Intent to Marry" in the U.S.?

Intent to marry describes a person’s declaration of interest to become a married spouse. In many cases, this is represented by a Letter of Intent and may be required for immigration purposes where a person’s immigration status depends on their marriage.

What is an Informal Marriage in the U.S.?

An informal marriage is another name for common-law marriage. The “informal marriage” term is used to describe common-law marriages in Texas as provided by Section 2.401 of the Texas Family Code.

How Do You Prove Common-Law Marriage in the U.S.?

The process of proving a common-law marriage typically requires documentation that supports the existence of that union. In some states, common-law married couples may obtain official affidavits that confirm the union. For instance, Texas requires each couple to obtain a Declaration of Informal Marriage, usable as evidence of the marriage. In states with no such documentation, the party proving the common-law marriage must support their claim with related documents.

The existence of a common-law marriage suggests a shared life between the two partners. Therefore, either partner may submit documents showing that both persons had common affairs. The partner may provide the following:

  • Documents showing joint bank accounts or credit accounts
  • Documents showing that the parties shared one surname
  • Evidence that the couple made joint financial decisions, such as mortgages and loans
  • Rental agreements that carry both names
  • Any document that proves both parties lived together
  • Insurance policies listing the parties as spouses
  • A birth certificate that lists both spouses as parents
  • Witness statements from family and friends confirming that both partners referred to themselves as husband and wife
  • Evidence confirming that the spouses wore rings on their ring fingers
  • Documents showing joint tax returns

While there is no comprehensive list of documents to prove the existence of a common-law marriage, affected parties may submit documents not listed above if such documents support their claims.

Third-party websites provide an alternative to obtaining public vital records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

  • The full name of both spouses ((include first, middle, and last names)
  • The date the marriage occurred (month, date and year)
  • The location where the marriage occurred (city and county)

How Do You Prove Common-Law Marriage in the U.S. After Death?

If one partner dies, the surviving spouse can prove the union using a common-law marriage affidavit or a Declaration of Informal Marriage. Where neither document is available and there are no similar options, the partner can provide other documents that evidence a shared life between both persons. A statement from close relatives can also lend credence to the surviving spouse’s case. However, states may only accept these documents as proof of a common-law marriage if the partners established the union in a place with supporting laws.

Do Common-Law Marriages Require a Divorce?

Common-law married couples who want to end their relationships must complete the traditional divorce process. Since there is no common-law divorce, partners must file a petition in a court with jurisdiction. Because different states have varying divorce requirements of divorce, couples may only file if they meet the conditions in the relevant state.

Some states have residency requirements that govern eligibility. For instance, New Mexico law states that at least one partner should have resided in the state for a minimum of six months. In Nebraska, the residency requirement is a minimum of one year for either partner. Common-law married couples who have completed the divorce process would receive a divorce decree from the court. Couples should note that all divorce laws apply, including provisions regarding property rights, child custody, alimony, and spousal support.

Does A Common-Law Wife Have Rights in the U.S.?

Most states provide legal marital rights to common-law wives. Common-law partners in unions recognized by their state of residence may access the same rights applicable to traditional spouses. Some of these rights include spousal benefits or property rights. However, partners must note that these rights may differ between states.

Can a Common-Law Wife Collect Social Security in the U.S.?

All eligible common-law wives can collect social security in the U.S. However, applicants must be partners in common-law marriages created in states with supporting laws. The Social Security Administration (SSA) accords common-law and traditional wives the same rights to social security benefits. Eligible persons must be at least 61 years and 9 months old.

The SSA allows eligible applicants to apply online, visit a local social security office, call (800) 772-1213, or TTY (800) 325-0778. Each applicant must submit a completed Statement of Marital Relationship Form and a Statement Regarding Marriage form completed by a blood relative. Required details include the following:

  • Each partner’s full name
  • Length of cohabitation
  • Month and year the cohabitation began
  • Possible separation periods since cohabitation began
  • Couple’s residential information
  • Information on the couple’s children where applicable. Provided details should include each child’s name, date of birth, and place of birth.
  • A list of parties aware of the common-law marriage. This list should not include the couple’s children.

Are Common-Law Wives Entitled to Half in the U.S.?

Common-law wives may receive half of the couple’s marital assets in community property states. In states like California and New Mexico, the courts assume that both parties have equal ownership of all assets and properties acquired during their union. However, courts may consider other factors and may not divide assets equally. In some instances, courts may decide to divide assets equally, depending on factors such as each person’s economic status, expenditure, debt, and the couple’s children.

Courts primarily use equitable division in separate property states. In states such as Nebraska and South Dakota, courts may apply fair distribution of property after considering similar factors. However, couples in separate property states must note that the court may also decide that an equal split is the most equitable option in a divorce.

How Do You Get a Common-Law Marriage Affidavit in the U.S.?

Common-law affidavits are obtainable in states with supporting laws. These documents may also be called different names, such as a Declaration of Informal Marriage in Texas. While details on a common-law marriage affidavit may differ between states, most states issue affidavits that include the following information:

  • Both partner’s full names
  • The date the partners decided to establish the union
  • Confirmation that each partner is of legal age
  • The state issuing the affidavit

When Did Common-Law Marriage End in the U.S.?

Common-law marriages are still recognized in the U.S. All states recognize common-law marriages created in places with laws that support the establishment of such unions. However, many states have abolished laws that allowed couples to create common-law marriages. For instance, California outlawed common-law marriages in 1895, while Nebraska allowed couples to enter these unions until 1923. States such as Washington and New Mexico recognize valid common-law marriages but never enacted laws establishing such unions.

What is Considered Common-Law Marriage in the U.S.?

A common-law marriage involves two people who share a residence, marital responsibilities, and publicly present themselves as married. When created legally, these unions are considered valid everywhere in the U.S. While some states still have active laws allowing for the establishment of such unions, others recognize common-law marriages created before they were abolished. Outside of these, individuals cannot create common-law marriages or access any related benefits or entitlements.