Common Law Marriage
Many Americans believe that if they are together for a specific length of time, like seven years, that they are engaged in a common law marriage. That is an old myth that is “busted.” While some states do recognize common law marriage, they are few and their restrictions are stringent.
Research has found that couples that practice common law marriage are up to three times more likely to suffer a divorce than traditional marriage types unless you have premarital education and participate in common law marriage with the first and only person you live with.
Because the laws of all states that recognize common law marriage require death or formal divorce to dissolve a common law marriage, you are not skirting your obligations or the gravity of commitment by foregoing a formal wedding.
All states that provide for common law marriage require that both parties be of majority age, 18 years old. Common law marriage requirements are listed below for all states that recognize such a union:
Alabama – mental capacity to enter into agreement; agree to be married and consummation of the relationship
Colorado – present yourself as married and cohabitate
Iowa – intend to be and stay married, continuous cohabitation and public declaration of marriage
Kansas – mental capacity and legal ability to marry, agree to marry and publicly represent that you are married
Montana – capacity to consent, agree to marry, cohabitate and have a reputation of being married
Oklahoma – competency, agree to marry and cohabitate
Pennsylvania – verbal exchange of agreement to marry and a plan to stay married
Rhode Island – serious intent to stay married and conduct of a married couple
South Carolina – represent yourself as a married couple
Texas – signed form at their local county clerk’s office, agree to marry, cohabitate and behave as husband and wife
Utah – capable of giving consent and a reputation of being married
Washington, D.C. – cohabitate and express intent to be husband and wife
There are a few ways you can represent yourself as a married couple. The first is to tell the community you are married. The second is to use the same last name. The third is to file joint income tax returns and the fourth is to share in financial obligations (mortgage, lease, car loan, utilities, etc.)
Georgia used to grant common law marital status but discontinued this on January 1, 1997. If you met the state requirements prior to that date and have been involved in the same relationship continuously, your relationship is still recognized as a common law marriage.
The same is true in Idaho, though they stopped the practice of granting common law marital status on January 1, 1996. Ohio also discontinued their common law marriage laws on October 10, 1991. Pennsylvania stopped granting common law marriage status on January 1, 2005.
A common law marriage must be dissolved as any other marriage – by divorce or death. There is no “common law divorce”; simply leaving the relationship does not diminish your responsibility to your common law husband or wife.
If you intend to live with someone as a married couple but do not wish to enter into a common law marriage, you should each sign an agreement stating that you are each free, independent entities and do not wish to marry or become committed in the eyes of the law.
The United States Constitution requires that all states recognize marriages that are legal in another state. That means that you are free to move to a “non-common law marriage state” from a state which you have established this commitment. Please note, however, that the rights of married couples do vary from state to state.
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Stephen Romero - November 22, 2022
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