What Is a “Common Law” Marriage?

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A marriage is a union between two people. Typically, state laws require a ceremony and official documentation to recognize a marriage. However, a few states still allow a common law marriage or an automatic marriage between two people who cohabitate for an extended period of time. If you have questions about the available marriage options in your state, it’s important to know what determines a common-law marriage.

Although some states do not allow common law marriages, they will still recognize common law marriages that occurred in other states as valid. For example, Colorado allows common-law marriages, but California does not. If a couple lives in California for twenty years, cohabitates the entire time, and considers themselves married, the state will still not recognize the couple as married without an official marriage license and ceremony.

However, if the couple lived in Colorado long enough to qualify as married under common law, California would recognize their marriage as valid if the couple moved from Colorado to California.

Elements of a Common Law Marriage

If you are wondering whether you and your partner qualify as a common-law marriage, there are several factors that determine a common law marriage:

  • Most states require that a common-law marriage take place between two heterosexual partners that reside together in a state that recognizes common-law marriages. However, the Supreme Court ruling that allowed same-sex marriages in all 50 states may influence some states’ guidelines concerning this law in specific circumstances. Generally, two same-sex platonic roommates could not qualify for a common-law marriage since they would not meet the criteria of an intimate relationship. Same-sex couples can simply apply for an official marriage if desired and not bother with common law distinction.
  • The length of time the couple has cohabitated also influences common law marriage determinations. No state places an exact time limit, such as cohabitating for seven years or ten years, before qualifying for a common-law marriage. Instead, judges use individual discretion and factors in the length of cohabitation on a case-by-case basis.
  • The couple must hold itself out to the public as a married couple, such as consistently referring to one another as “husband” and “wife” and filing joint tax returns.

Some cohabitating couples may not wish to be married under common law. If so, they should file a “Living Together Statement” with the court to make their intentions clear and avoid an unwanted designation of common law marriage.

Name changes are not a requirement for a common-law marriage or any other type of marriage. Ultimately, any person can apply for a name change for any reason or no particular reason at all and make it official by filing the appropriate paperwork with the court. However, many states recognize name changes without official documentation. In theory, it is possible in most states to change your name through usage only.

Drawbacks to Common Law Marriages in 2019

Despite the apparent convenience and other benefits of a common-law marriage, there are several distinct disadvantages. Primarily, a common-law marriage does not create a presumption that the marriage officially existed. There is no official record of the marriage on the public record.

This can also create problems when the relationship ends. Since there is no record of a common-law marriage officially on the public record, there is no set process for determining division of assets or community property that would exist in an official marriage. In the event of a breakup, one of the partners could have nothing left and no grounds for legal recourse.

Common-Law Marriage Statutes by U.S. State

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Another issue facing common law marriages is survivorship benefits. If your partner dies in a common-law marriage, you have no legal claim on his or her property as you would in an official marriage. Anyone with questions about common law marriage and state laws should consult with a San Jose family law attorney. If you’re located in the San Francisco, San Jose, San Mateo or surrounding areas, contact our office today to schedule an initial consultation.

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