Common Law Marriage

Menstuff® has compiled the following information on Common Law Marriage.

Cohabitation Do's and Dont's
Fact
If You Live in a State that does Recognize Common Law Marriage
If You Live in a State that does not Recognize Common Law Marriage
States that Recognize Common Law Marriage

Fact


There is a common misperception that if you live together for a certain length of time (seven years is what many people believe), you are common-law married. This is not true anywhere in the United States.

States that Recognize Common Law Marriage


Under the common law marriage doctrine, you are considered legally married, despite not having a marriage license, a ceremony, or a marriage certificate, if you meet specific requirements listed in the statutes of the jurisdiction where you live. The benefits of common law marriage include the right to inherit upon the death of one spouse and the right to spousal support and an equitable division of property should the marriage terminate. The jurisdictions that recognize common law marriage and the requirements of each are listed below. In addition, various other states will recognize a common law marriage if it was valid in one of these states and meets these requirements, even though those states do not themselves have statutes providing for common law marriages.

Only a few states recognize common law marriages:

Alabama. In this state, the parties must agree to be husband and wife, they must have the mental capacity to enter into and understand such an agreement, and they must consummate the marital relationship.

Colorado. In order for a common law marriage to exist in Colorado, the relationship must be proven by the cohabitation of the common law spouses and their reputation for being married.

District of Columbia. In the District, a common law marriage is established by the parties' explicit intent to be married and by their cohabitation.

Georgia (if created before 1/1/97)

Idaho (if created before 1/1/96)

Iowa. A common law marriage is established in Iowa by the parties' intent and agreement to be married, their continuous cohabitation, and their public declarations that they are husband and wife.

Kansas. In Kansas, the man and woman must have the mental capacity to marry, they must agree to be married at the present time, and they must represent to the public that they are married in order for a common law marriage to exist.

Montana: The requirements for a common-law marriage are: (1) capacity to consent to the marriage; (2) an agreement to be married; (3) cohabitation; and (4) a reputation of being married.

New Hampshire. This state recognizes common law marriages only upon the death of one of the spouses. In other words, common law marriages are recognized in New Hampshire for inheritance purposes only.

Ohio (if created before 10/10/91)

Oklahoma: To establish a common-law marriage, a man and woman must (1) be competent; (2) agree to enter into a marriage relationship; and (3) cohabit. (possibly only if created before 11/1/98. Oklahoma's laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)

Pennsylvania: A common-law marriage may be established if a man and woman exchange words that indicate that they intend to be married at the present time.(if created before 9/03)

Rhode Island: The requirements for a common-law marriage are: (1) serious intent to be married and (2) conduct that leads to a reasonable belief in the community that the man and woman are married.

South Carolina: A common-law marriage is established if a man and woman intend for others to believe they are married.

Texas: A man and woman who want to establish a common-law marriage must sign a form provided by the county clerk. In addition, they must (1) agree to be married, (2) cohabit, and (3) represent to others that they are married.

Utah: For a common-law marriage, a man and woman must (1) be capable of giving consent and getting married; (2) cohabit; and (3) have a reputation of being husband and wife.

Source: It's Legal! Legal Information Network, whose website no longer exists. We are not responsible for omissions or inaccuracies in the above information.

If You Live in a State that does Recognize Common Law Marriage


If you live in one of the above states and you "hold yourself out to be married" (by telling the community you are married, calling each other husband and wife, using the same last name, filing joint income tax returns, etc.), you can have a common law marriage (for more information on the specific requirements of each state, see next page). Common law marriage makes you a legally married couple in every way, even though you never obtained a marriage license. If you choose to end your relationship, you must get a divorce, even though you never had a wedding. Legally, common law married couples must play by all the same rules as "regular" married couples. If you live in one of the common law states and don't want your relationship to become a common law marriage, you must be clear that it is your intention not to marry. The attorneys who wrote Living Together (additional information below) recommend an agreement in writing that both partners sign and date: "Jane Smith and John Doe agree as follows: That they've been and plan to continue living together as two free, independent beings and that neither has ever intended to enter into any form of marriage, common law or otherwise."

If You Live in a State that does not Recognize Common Law Marriage


In these states there is no way to form a common law marriage, no matter how long you live with your partner. There is one catch: if you spend time in a state that does recognize common law marriage, "hold yourself out as married," and then return or move to a state that doesn't recognize it, you are still married (since states all recognize marriages that occurred in other states). However, this is murky legal territory and we don't recommend experimenting with it!

Source: Much of the information on this fact sheet comes from an excellent do-it-yourself legal guide called Living Together: A Legal Guide for Unmarried Couples, by attorneys Toni Ihara, Ralph Warner, and Frederick Hertz (2000). The authors of this information are not attorneys. If you have additional questions about common law marriage in your state, seek the assistance of a lawyer. www.unmarried.org/common.html

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