Many people (mistakenly) believe that if you’ve lived with someone for long enough, then you’re automatically considered married.
When in fact, that’s not the case in most states. The majority of states require a formal marriage license to be recognized as a valid marriage.
You see, marriage is a legal contract. Like all contracts, it comes with certain rights and responsibilities governed by the laws in your state.
Without a valid marriage, the rights and responsibilities don’t apply. It’s what we call a “threshold issue.”
In this guide, I’ll cover what states recognize common law marriage, the requirements, how to end a common law marriage, and more.
With that, let’s dive in.
Common law marriage is often considered the original form of marriage. It dates back centuries when a couple would take up residence together, behave as a married couple, and present themselves to the world as a married couple. These standards are still pretty much in force today, along with the fact that a couple has never gone through a formal ceremony or gotten a marriage license.
In states where common law marriage is allowed, these standards can vary slightly, but the overall defining requirements are pretty much the same. Also, the length of cohabitation for a common law marriage to be recognized varies from state to state.
Common law marriage is also known by several other names:
Currently, common law marriage is recognized in seven states and the District of Columbia:
New Hampshire and Utah also recognize common law marriages in limited situations.
All states recognize validly contracted foreign common law marriages because they recognize all validly contracted foreign marriages.
For example, Michigan abolished common law marriage contracts in 1957, so any common law marriage contracted in the state before that date will be recognized as such. However, any valid out-of-state common law marriage will be recognized in Michigan because the state recognizes all validly contracted common law marriages.
The following 28 states recognized common law marriage at one time but abolished the practice in the years noted. If two people entered into a common law marriage in these states before the year indicated, then the common law marriage will be recognized and valid.
The following 13 states have never recognized common law marriage.
While these states have never recognized in-state common law marriages, just like other states where common law marriages were recognized at one time, they do still recognize validly contracted out-of-state common law marriages.
Also, the American territory of Guam does not recognize common law marriage. The commonwealth of the Northern Mariana Islands also does not recognize common law marriage, but it might recognize a customary marriage.
A customary marriage is defined as a union taking place under customary law. That means marriage can take place when it follows the customs and usages traditionally observed by certain indigenous peoples who may not follow the laws of a country or jurisdiction. These are sometimes referred to as civil marriages.
There are general applicable requirements for a common law marriage to be valid. Specific requirements will vary slightly from state to state, including the amount of time cohabitation is needed to meet state laws.
Here are the particulars of the states that do recognize common law marriage.
Both spouses must meet the following elements of a common law marriage in Colorado:
The state does not recognize common law marriages entered into by minors or any foreign common law marriages entered into by minors, even if that marriage would have been valid where entered into under local law.
District of Columbia Department of Human Services states that a common law marriage is “A marriage that is legally recognized even though there has been no ceremony and there is no certification of marriage. A common law marriage exists if the two persons are legally free to marry, if the two persons intend to establish a marriage, and if the two are known to the community as husband and wife.”
According to Administrative Rule 701—73.25 (425) of the Iowa Administrative Code, the elements of a common law marriage in the state are:
Both parties must be at least 18 years old and meet the following requirements:
The following elements for a common law marriage in the state are:
For more than 20 years, despite several conflicting points of view as to whether or not common law marriage is still valid in the state, as of 2016, The Oklahoma Tax Commission continued to recognize common law marriage as valid. That appears to be a dynamic situation, and it is best to check with a legal professional in Oklahoma if you have questions related to common law marriage statutes.
The elements for a common law marriage to be valid in the state are:
Both parties must be at least 18 years old, and other elements defined in the Texas Family Code Sections 2.401 through 2.405 must be met. A common law marriage can be entered into in two ways:
First, by entering into a Declaration of Informal Marriage. A legally binding document is completed by both partners and sworn or affirmed in front of a County Clerk. It is then recorded into official county records as such.
Second, by showing evidence of all of the following:
New Hampshire and Utah recognize common law marriage, but only for limited purposes.
In New Hampshire, common law marriage is recognized for purposes of probate only. According to state law, “[P]ersons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for three years, and until the decease of one of them, shall thereafter be deemed to have been legally married.”
Utah also recognized common law marriages on a limited basis, but the status of common law marriage in the state is not clear. There are challenges to the law, but as it is currently written, Utah will recognize common law marriage only if it has been validated by a court or administrative order that establishes:
If a marriage is recognized by law in the state where the marriage takes place, the marriage is considered valid for tax purposes. That means you must take into account the specific requirements for common law marriage in your state if you are thinking about filing a joint return.
Also, under the Family and Medical Leave Act of 1993, the Department of Labor amended the definition of “spouse” to extend FMLA leave rights and job protections to employees in a same-sex marriage or a common law marriage. That is applicable where those statuses are legally recognized, regardless of the state where the employee current lives or works.
An employer that offers spousal coverage will include a contractual definition of what a spouse is to cover the spouse of a common law marriage. That means an employer would have to allow enrollment of a spouse from a common law marriage the same as they would a spouse from a traditional marriage.
Also, children from a common law marriage are presumed to be legitimate, meaning they would be considered dependents of the employee and also eligible for health coverage. According to the Patient Protection and Affordable Care Act, an employer does not have to offer spousal coverage but does have to cover eligible dependent children to avoid penalties.
Once a common law marriage has been established, it is legal and binding, just like a formal marriage. To end a common law marriage, a court must grant a divorce, or a partner must pass away.
Keep in mind that if you or your partner die before formally establishing a common law marriage, you will have to go through several legal hoops to prove your marriage. That is so that you can be entitled to receive insurance benefits, inheritance, and Social Security Survivor’s Benefits or pension benefits.
The amount of time a couple has cohabitated to meet the requirements for a valid common law marriage vary from state to state.
However, the length of time you have lived with another person does not solely determine if you hare in a common law marriage or not. There are no state laws or court decisions that state if you’ve been living together for three, five, seven, or ten years that you are automatically in a common law marriage.
Courts will take several factors into account when determining the validity of a common law marriage.
Yes. In some instances, all you need to do is start using your new name, as long as it is not for fraudulent purposes. Make sure to change it on all your accounts and identification documents. Keep in mind that due to rising problems with identity theft, fewer companies are allowing this, and more are requiring you to supply legal documentation to substantiate your name change.
In many cases, people in common-law marriages do not have marriage records. In these cases, you’ll need some form of court order documenting your name change. This will be helpful for private entities like banks, but you will need something official for government name changes such as on your driver’s license or Social Security card.
If the asset is in your name only, then you can lay claim to the entire asset without the formality of a valid common law marriage. Any asset that lists both partners as owners, such as a house or a car, means that each partner can claim their share of ownership in the asset.
If an item doesn’t have a title document, generally, you own it if you paid for it or received it as a gift.
In all cases, rules regarding ownership can be superseded when partners sign a written agreement that makes the property in question one person’s property only, or both partner’s property. This is similar to a prenuptial agreement or a postnuptial agreement that spells out exact ownership details in a traditional marriage.
Just because you live with another person for any length of time, it does not explicitly give you or your partner any legal rights when it comes to legal, medical, or financial decisions regarding each other. Without the default protections afforded by marriage or a legally recognized common law marriage, you will need to take added steps to protect you and your partner.
That can be done through a cohabitation agreement that spells out financial obligations with each other during and after a break-up. If you own property together, the agreement can also spell out terms for what happens to the property if you break up.
You can also include details on what each of you will promise to leave to the other if one of you passes away. This can also be accomplished by executing a separate will document.
Also, consider making your cohabitor a beneficiary for retirement accounts and life insurance policies if that’s your desire.
One other smart move may be to declare that your live-in has the power to make health care decisions on your behalf if you become incapacitated. This is accomplished by executing an Advance Directive for Health Care. Understand that these documents give your partner access to all of your finances. Sign powers of attorney only for those individuals that you trust implicitly.
Both parties must agree that they intend to be married and must also hold themselves out to the community, friends, and family as being a married couple. This can include factors such as taking the same last name, referring to each other as husband or wife and holding joint assets together.
If you don’t want to have your relationship recognized as a common law marriage, you need to refute any of these points, or state clearly that you are simply boyfriend or girlfriend in most cases.
There is no such thing as a common law divorce. If you want to end a common law relationship that has been legally recognized, then you must go through the normal divorce process according to the laws of your state.
Many common law spouses hire divorce attorneys because courts will still need to render decisions on child support and custody, spousal support, property division, and other matters.
If you’re in a common law marriage and move to a state that doesn’t recognize common law marriages, you still need to get a legal divorce in that state. This is because all states recognize valid marriages from other states.
A common law spouse who is the sole owner of a shared residence can sell a house without splitting the proceeds. When a couple stops living together, the person whose name is on the deed keeps the property. You may be able to make a claim of partial ownership based on contributions you made to paying part of the mortgage or other housing expenses. It’s best to consult an experienced family law attorney to explore your rights.
The smarter thing to do if you’re considering buying a home is to enter into a co-ownership agreement. Listing both names on the deed as purchasers or owners is the best way to protect your interests.
Children from a common law marriage have the same rights as those from a legal marriage. Parents in a common law marriage also have the same obligations as legally married parents. As such, parents don’t have to adopt children if they are already acknowledged as their offspring.
Also, a child can either be given the last name of the father or the mother, or a combination of the two last names.
The surviving or non-disabled spouse must prove that they are in a valid marriage. In some cases, it may be possible for a spouse’s family to exclude you from making medical decisions or inheriting property.
Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
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