What Makes a Common Law Marriage
The Common Law States
Do You Have a Common Law Marriage?
- What Makes a Common Law Marriage?
- What Are the Common Law Marriage States?
- Do We Have a Common Law Marriage?
- The Requirements for a Common Law Marriage
- How Can I Meet the Requirements for a Common Law Marriage?
- How to End a Common Law Marriage
- If Your Spouse Has a Common Law Marriage
- Can I Change My Name in a Common Law Marriage?
- Why Do People Need a Common Law Marriage?
- How Can I Prove I had a Common Law Marriage?
What Makes a Common Law Marriage?
Couples can become legally married without a a marriage license or a ceremony. There are two types of marriages, statutory and common law. In a traditional, statutory marriage, the couple has a ceremony, a marriage certificate and an exchange of vows before witnesses. Common law marriage is an alternative to traditional marriage. In a valid common-law marriage, the partners have the same rights and duties as if there had been a statutory marriage. A man and woman who live together and “intend to be married” can become common law spouses without a license or a wedding. This is called a common law marriage.
In a common law marriage, you are considered legally married. You won't have a marriage license, a ceremony, or a marriage certificate, but if your state recognizes common law marriages, and if you meet certain state legal requirements, you are married. But only a few states recognize common law marriage.
The theory of Common Law Marriage is that if the couple acts as if they are married, the State will recognize that they are for all intents and purposes married.
What Are the Common Law Marriage States?
These are the only states that allow couples to create a common law marriage:
- District of Columbia
- Georgia (if created before 1/1/97)
- Idaho (if created before 1/1/96)
- New Hampshire (for inheritance purposes only)
- Ohio (if created before 10/10/91)
- Pennsylvania (if created before 1/1/05)
- Rhode Island
- South Carolina
- Utah ( if validated by a court or administrative order)
Do We Have a Common Law Marriage?
We live together. Do we have a common law marriage? Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years. You must meet the requirements below.
We live together and have plans for a marriage or a common law marriage. Do we have a common law marriage? If the couple lives together and have the intention of creating a marriage at a future date, then by law no marriage exists. Any agreement for a future marriage does not create a common law marriage. You must both assert that you are currently married to have a valid common law marriage. And you must meet the requirements below.
The Requirements for a Common Law Marriage
You must live in a state that permits common law marriage.
- Both parties must be capable of giving consent
- Even though there is no traditional statutory marriage, both parties must be legally able to enter into a traditional marriage. This means that they must be old enough, they must be physically and mentally competent, and they must not be related to each other.
- The parties must not have another living spouse, either from a regular marriage or a common law marriage.
- You must both freely agree that you are married
- You must live together for a significant period of time (not defined in any state)
- You must have relations with each other.
- The couple must hold themselves out as a married couple. They could do this by using the same last name, by referring to the other as "my husband" or "my wife," or by filing a joint tax return.
How Can I Meet the Requirements for a Common Law Marriage?
The requirements above are your guidelines for a common law marriage. Some actions will show that you have a common-law marriage.
Jointly registering your common law marriage with a county agency shows that you have the intent to be married Other ways to demonstrate that you have a common law marriage is by using the same last name, by referring to one another as husband or wife, and by filing a joint tax return. Perhaps you have a joint checking account as husband and wife, wear wedding rings, or the woman adopts the husband's name. You introduce yourselves as a married couple.
If your common law marriage is valid in your own state, it will be recognized by all states, even in states which do not allow common law marriage. For example, if you have a common law marriage in Montana, your marriage will be recognized in any state you move to. This principle is guaranteed by the "full faith and credit" rule of the U.S. constitution, so that one state is compelled to recognize a marriage made valid under the laws of a sister state.
How to End a Common Law Marriage
The only way to dissolve or end a common law marriage is through divorce or court dissolution. If your state recognizes common law marriage, and you have met the requirements for a common law marriage, the common law marriage is treated in exactly the same manner as any other marriage. This means that a valid common law marriage must be ended through a formal divorce process. The common law married couple cannot end the marriage by a simple agreement, because there is no such thing as a common law divorce. If your circumstances are complicated, consult a lawyer who knows the law in your state.
If Your Spouse Has a Common Law Marriage
If you marry a person who is already involved in a common law marriage, your marriage is not valid. Your partner must get a divorce before he or she is free to marry you. After the divorce from the common law spouse, a judge can marry the two of you and backdate the marriage, so that your marriage dates from the time you went through the ceremony.
If you have a common law marriage, you cannot enter into another common law marriage until you divorce your common law husband.
If a person enters into two common law marriages, only the first one is valid.
Can I Change My Name in a Common Law Marriage?
After my common law marriage, can I change my name to my partner's name? Yes, anyone can do a name change. Did you know that most states allow you to legally change your name by usage only. That means that no paperwork or court action is required. You can simply start using your new name. However, to change your name on Social Security records, banks, credit cards, insurance records and house deed, you will need an official court order for your name change. If you had a marriage certificate, that would be enough proof for the banks and all others. But in a common law marriage you don't have a marriage certificate.
Why Do People Need a Common Law Marriage?
These rights vary from state to state. You may have these rights even in a state that does not recognize common law marriage. You should consult a lawyer for details.
In a common law marriage, you have the right to inherit if your spouse died, even if you are not named in the will. It will be up to you to prove that you had a common law marriage.
- After the death of a common law spouse, you will be eligible for survivor benefits from the Social Security Administration.
- In a common law marriage, you can file a joint income tax return and benefit from tax provisions for married couples.
- If you have a common law marriage, you are entitled to support from your spouse.
- You are entitled to alimony in the event the marriage ends.
- If you have a common law marriage, you have the right to visit your spouse in the hospital and make medical decisions for your spouse.
How Can I Prove I had a Common Law Marriage?
You can prove your common law marriage by providing three affidavits. Two affidavits should be from people who are aware of your common law relationship. In the third affidavit you present your history together. The affidavits should be notarized by a public notary. In your affidavit:
- Explain how long the two of you have lived together.
- Provide the addresses where you lived together.
- Provide any public announcement or registration of your common law marriage.
- Disclose the state where the two of you agreed to be husband and wife, and the date.
- Mention any previous marriage relationships and the dates, both licensed and under common law. Provide the proof of how the relationships ended and the dates.
- Attach any documents that support your common law marriage, such as naturalization certificate, immigration record, insurance policy, deeds, passport, child's birth certificate, joint bank account records, church records, or employment records.
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