Can you simply live together for a certain length of time to have a legal common law marriage? This question presents just one of the common misconceptions about this issue. While common law marriages are still recognized by some states, the ones that do give legal status to cohabitating couples have rules and guidelines that must be followed for the relationship to qualify as a common law marriage. To gain more factual information about what constitutes a common law marriage, read on.
Where Are Common Law Marriages Recognized?
As of this writing, 27 states do not recognize common law marriages at all. Other states recognize it only for probate purposes, and all states that recognize it have their own specific laws that determine the validity of the relationship for legal purposes.
What Are the Requirements For Common Law Marriages?
In states that do recognize common law marriages, cohabitation is just one of several requirements that must be fulfilled. A common requirement among common law marriage states is that you must be legally qualified to be married in order to also have a common law marriage. In other words, you must be:
- At or above the minimum age for marriage.
- Not already married to another person.
- Have a sound mind and not be incapacitated.
Other common law marriage requirements include:
- The couple (both parties) intend to live as a married couple.
- The couple must "hold themselves" as a married couple. This means that both parties represent themselves to the community, the family, and their place of worship as a married couple.
- The couple has filed taxed returns using the "married filing jointly" designation.
Are There Common Law Divorces?
Technically, there is no provision in any state for a common law divorce, per se. That does not mean, however, that people who have held themselves to be in a common law marriage can simply cease to live together and go their separate ways without the need to legally divorce. If you have maintained that you are in a common law marriage, you must use the same legal means to split up as those who are in a traditional marriage.
As you might imagine, some common law marriages that end can be highly contentious, especially if only one party maintains that a common law marriage exists. Since divorce normally involves a division in debt and assets, child support and custody, and spousal support, it could be to one party's advantage to claim that, in fact, no common law marriage existed. Family law judges will evaluate the validity of the marriage to determine the status based on length of cohabitation, IRS filing status, children raised together, property owned jointly, and other markers of a common law marriage.
If you are separating from your partner and maintain that you have been a participant in a common law marriage, consult with a divorce attorney, such as Bray & Johnson Law Firm, to find out how to protect your rights.