Guide to Divorce
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
What are the State 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
- 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.