Many people think that the old-fashioned marriage practice known as common law marriage is a thing of the past, but it does still exist. Not all states recognize this form of marriage, and those that do have requirements that go beyond the need to live together for a certain length of time. To learn more about this less common means of tying the knot, read on.
States that recognize common law marriage: While the exact laws and rules can vary from state to state, if you live in one of the states that does recognize this form of marriage, you are expected to:
- Abide by that state's minimum age requirements for marriage.
- Be unmarried (not in a legal marriage to someone else).
- Be of sound mind.
- Be in agreement with each other as to the status of the relationship. In other words, both parties should be of the same mind: that you wish to live together as husband and wife.
- Represent themselves as being married to their family, friends, the community, the church and so on.
- File as "married filing jointly" when filing taxes.
When a common law marriage comes to an end: If the relationship is no longer working well for most couples, they can agree to divorce or just to part ways, but this situation can be trickier when it comes to common law marriages. If you live in a state that recognizes these types of marriage, and you meet the above requirements for being in a common law marriage, you cannot just call an end to the relationship and part ways. While there is no such thing as a "common law divorce" proceeding, you are expected to go through a traditional divorce just as if you were ending a traditional marriage.
Does a common law marriage really exist? Parting couples are not always on good terms, and often there is a disagreement between the husband and wife on whether or not they were actually married at all. Since child custody, alimony (spousal support), property division and debt division can be contentious issues if you are going through a divorce, it's not surprising that some couples don't want to deal with it and would rather just claim they were living together. It should also be no surprise that the party with the most to lose would claim that no marriage ever existed.
What the judge looks for: If a divorce is brought before the courts and one party insists that no marriage ever existed, the judge will review the relationship and look for signs of a legitimate common law marriage by asking:
- How long did the couple live together?
- Did the couple ever share a common last name?
- Did the couple ever file a joint tax return?
- Did the couple have children together?
- Did the couple own property together?
- Did the couple "hold themselves out," that is, present themselves to others, as married?
If you are in one of the states that recognizes common law marriages and your relationship is coming to an end, speak to a divorce attorney as soon as possible to protect your interests and parental rights. Contact firms like Kalamarides & Lambert to learn more about common law marriages and divorce.