Does Common Law Marriage Still Exist? What To Know

The specter of common law marriage seems to carry as many myths as it does actual facts. It may be surprising for some people to learn that common law marriage does, in fact, exist in some states, but that being granted the legal status of common law married is far from easy or simple. Many people are certain that simply living together for a certain period of time is enough to call yourself common law married, but in fact domestic domicile is only one of many qualifications that make a common law marriage. To learn more about what constitutes a common law marriage, read on.

Common Law Marriage Requirements

In the states that recognize common law marriage, there are specific rules that govern the validity of these relationships. While residing together is a basic and consistent requirement across the board, there are many other requirements. It should be noted that each and every state has their own rules concerning this legal status, but generally couples must:

  1. Be of the minimum age to marry.
  2. Not already married to someone else.
  3. Be of sound mind.
  4. Both parties must be of one mind and opinion about the relationship; both parties must have the expressed intention to live as a married couple.
  5. The couple must "hold themselves" to be a married couple in every way. They must be known as a married couple to their family, the community, their church, their business acquaintances, etc.
  6. They must file tax returns as "married filing jointly".

Getting a Common Law Divorce

As such, there is no such legal instrument as a "common law divorce". If you have met the requirements for having a common law marriage, however, you must use the same legal practices and procedures to divorce that traditionally married couples do. For example, you cannot pretend to be common law married and benefit by the tax filing status of married filing jointly and then simply part ways when the relationship ends. You must pursue a legal divorce through the proper legal channels.

Many couples run into problems when the issue of spousal support (alimony) and property and debt division arises when splitting up. One party may contend that there was never a common law marriage at all, and therefore there is no "need" or legal vehicle for ordering alimony, using a QDRO or divisions of debt and property. Family courts judges will rule on the validity of the marriage by investigating how the couple has "held themselves" to others, use of a common last name, filing status of tax returns, and more.

If you are in a common law marriage, you may have the same rights in divorce as any married and divorcing party, so contact a family law or divorce attorney—like those at Bray & Johnson Law Firm and other firms—for more information about how common law marriages are treated in your state.