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Affiliated Attorneys, LLC Blog

Monday, September 17, 2018

What is Common Law Marriage?

Common law marriage has existed since, at least, 1877. While many states no longer recognize it, some states do, if you meet specific qualifications. The concept can be useful in some situations, particularly as it relates to making healthcare decisions or inheritance.

Requirements for Common Law Marriage

It is a common misconception that if you and your partner live together for seven years, then you are automatically considered common law married. The truth is that common law marriage requires a few more steps than merely living together. The requirements for common law marriage in most states are set out below.

  1. The couple must live together. Some states have specific time frames that the couple must live together to meet this requirement.
  2. The couple must both have the “capacity to be married.” Capacity to be married generally means that you are over the age of majority (18 years old in most states), you are of sound mind, and you are not married to someone else.
  3. The couple must both intend to be married. One member of the couple cannot force marriage on the other.
  4. You both hold yourselves out as being married to friends and family. You can do this in a variety of ways, such as having joint bank accounts, referring to one another as “husband” or “wife,” and taking the same last name.

Common law marriage, once established, is just like other forms of marriage. That is, you must go through a divorce for it to end. Of course, it will also terminate when one spouse passes away.

When a spouse passes away, someone in a common law marriage arrangement may have a more difficult time proving that he or she is the decedent’s spouse. It is much easier to present a marriage license than to establish the requirements for common law marriage, which is why so many people choose to go through the formal route, if possible.

There are situations where a couple may meet the requirements to be common law married, but that was not their intention. If that is the case, you can both sign an agreement that states that you are not married or do not intend to be common law married.

States that Recognize Common Law Marriage

There are just a few states that recognize common law marriage in its entirety. Some other states have limited recognition, such as for inheritance purposes or if the relationship was created before a certain date. The following states completely recognize common law marriage:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • Rhode Island
  • South Carolina
  • Texas
  • Utah
  • District of Columbia

Only the District of Columbia, Rhode Island, and Iowa currently recognize same-sex common law marriage.

Marriages Recognized in Other States

Because of the Full Faith and Credit Clause of the United States Constitution, other states must recognize your marriage if it was valid in another state. That is, if you have a common law marriage in Kansas, for example, and you chose to move to Nebraska, your marriage will still be recognized by Nebraska, even though Nebraska does not have common law marriage.

 


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Serving Southeastern Wisconsin, with offices in Milwaukee and West Bend, Affliated Attorneys, LLC represent clients throughout Milwaukee County, Washington County, Waukesha County, Dodge County, Ozaukee County, Racine County, Sheboygan County, Jefferson County, Fond du Lac County and Walworth County.



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