Common-Law Marriage: Myth or Reality?

Posted on: 23 August 2016

The whole idea seems far-fetched: simply move in with your beloved and live together for a certain period of time, and viola! You're common-law married. In reality, there is more to it than that, but common-law marriage does exist in some states. In states that recognize common-law marriage, cohabitation is just one of many requirements, so read to learn more about this little-known way to form a legal relationship.

States that recognize common-law marriage

State law changes constantly, so be sure to check the specific laws in your state, but as of this writing, 27 states have no recognition of common-law marriage at all. Some states recognize it only for the purposes of probating wills, and those that do recognize it have rules about what constitutes a common-law marriage.

Requirements of common-law marriages

Contrary to popular belief, living together is but one of many requirements for a common-law marriage to be legally recognized as such. Most states hold the opinion that you cannot have a common-law marriage if you would not be legally able to hold a traditional marriage. For example, someone considered to be in a common-law marriage cannot already be married to another person, under the legal age to marry, or incapacitated or of an unsound mind. 

In order to have a legally recognized common-law marriage, the couple must demonstrate the following three behaviors.

1. They must live together as a married couple.

2. They must openly "hold themselves out" to be married. In other words, the couple tells family members, friends, the community, their church, and everyone else that they are married or common-law married.

3. They must file their tax returns as "married filing jointly."

Common-law divorces

If your state recognizes common-law marriage, and you meet the requirements, you must divorce in the traditional manner. There is no such thing as "common-law divorce," just divorce and divorce laws. When only one party contends that there was never a common-law marriage, a judge will need to decide on the validity of a common-law claim by looking at the IRS filings to view filing status, the length of cohabitation, information about any children of the relationship, and any jointly owned real estate and other property.

Why would one party contest there was a common law marriage and one contest there was not? Normally for spousal-support reasons. Children of the relationship will receive the protections of child support, custody, and visitation regardless of whether or not there was a marriage.

If you suspect that you have a common-law marriage situation that needs to be addressed, contact a family law attorney for help.