Common Law Marriage

Common law marriage, which is still recognized in a minority of states, is the recognition of two people as legally married even though no wedding has taken place and no marriage has been registered with the state. Even though common law marriage can only be entered into in 9 states (Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah) and the District of Columbia, all 50 states recognize common law marriages created in states they are recognized. However, contrary to popular belief, a common law marriage is not created simply because two people live together.

What are the State Requirements?

Requirements for creating a valid common law marriage differ from state to state. However, four criteria generally must be met in order to establish a common law marriage.

  • Jurisdiction: The state in which the parties reside must be one that recognizes common law marriage as legally valid.  While the parties may later relocate to another state, the common law marriage must have been originally established in a state that allows for such a legal status.
  • Cohabitation: In order to establish a common law marriage, the parties must live together. While no minimum time requirement is generally set, it is clear that the period of cohabitation must be significant.
  • Presentation: The couple must present themselves to society as a married couple. While there is no hard and fast rule as to how to do this, referring to themselves as husband and wife, producing children, purchasing property together, and filing joint tax returns are the types of actions a court would look to in finding that a common law marriage exists. Additionally, some states require that the relationship must be sexually consummated.
  • Intent: The parties must intend to be married in the future. Whether such intent must be shown by objective evidence or can simply be testified to is unclear. Some states require that the parties show a “serious commitment to be married.” Again, there is little guidance as to what kind of objective evidence would show such a commitment, but the testimony of family members regarding wedding planning or discussions regarding an impending marriage may be sufficient.

Interestingly, both the Internal Revenue Service and the Social Security Administration recognize common law marriages.  However, in order to be eligible for survivor benefits under social security, common law spouses must fill out additional paperwork, provide affidavits from two blood relatives, and show proof of the common law marriage.

Documents to Prove Common Law Marriage

  • Personal affidavit with details on common law marriage and end of any previous marriages
  • Affidavits from other persons
  • Property title deeds showing joint ownership
  • Joint bank account statements
  • Joint credit card accounts
  • Loan, mortgage, and promissory documents listing both spouses as financially obligated
  • Insurance policy that names the other spouse as beneficiary
  • Birth certificates of your children listing both of you as parents
  • Employment records listing your spouse as immediate family member
  • School Records listing both spouses as parents
  • Documents showing wife assumed surname of husband
  • Church records such as baptismal certificates, sunday school registrations indicating familial status
  • Mail addressed to both as Mr and Mrs.

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