Common Law Marriage

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 15, 2021

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A common law marriage is a union of a heterosexual couple that occurs without a license or ceremony. The individuals in a common law marriage have the same rights as individuals in a marriage that involved a license or ceremony. Generally, a common law marriage is recognized as having been contracted when a couple has been living together and followed certain conditions.

In the United States, a couple can contract a common law marriage in the District of Columbia and nine states: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Utah, and Texas. Five states have grandfathered in common law marriages contracted before a certain date: Georgia, Idaho, Ohio, Oklahoma, and Pennsylvania.

Common Law Marriage Conditions, Interstate Recognition, and Dissolution

The conditions that a couple must follow to contract a common law marriage vary between states. Several states follow Texas’s three-part test: the couple must have agreed to be married, held themselves out to be husband and wife, and lived together in the state as husband and wife.

Similarly, in Utah, the couple must be of legal age and capable of giving consent, legally capable of entering into a solemnized marriage according to the state’s civil code, have cohabited, mutually assume marital rights and obligations, and held themselves out as husband and wife. When a state’s civil code is unclear regarding the status and rights of individuals who contract a common law marriage, the state uses the rulings of previous cases, or case law, to determine how to resolve conflicts.

The Full Faith and Credit Clause of the U.S. Constitution requires states that do not allow common law marriage to recognize the validity of common law marriages contracted in other states. In some states, individuals must file a petition with a civil court to have their relationship recognized as a marriage. This is true in Utah, which holds that a petition must be filed during the relationship or within a year after the relationship ends.

States differ as to how individuals in a common law marriage may separate. In Texas, the individuals can seek a formal divorce or seek to have the marriage annulled. In Oklahoma, the individuals must file for a formal divorce. A civil judge will decide on matters regarding child custody and division of property according to the normal rules of divorce for the state.

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Issues with Commmon Law Marriage

A common law marriage may present difficulties for individuals who want to file joint tax returns, set up joint bank accounts, and file for and receive Social Security benefits. State civil courts generally provide an avenue for individuals in a common law marriage to apply for a declaration of marriage to facilitate these types of transactions. A declaration of marriage requires filing a petition with a civil court and may necessitate the signature of a notary public.

There are a few oddities in state laws regarding common law marriage. New Hampshire recognizes common law marriage only for inheritance purposes. This state acknowledges that a common law marriage is valid only at death. If you are unclear on your state’s laws regarding common law marriage, seek the advice of an experienced divorce lawyer.

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