Is Common Law Marriage a Good Alternative to Legal Marriage?

Learn more about the pros and cons of common law marriage.

What Is Common Law Marriage?

Common law marriage is a concept that has been around since the 1800s. The idea allows couples to be legally married without the formality of a ceremony, witnesses, and a marriage license.

Many people believe that a common law marriage is formed simply by living with your partner for a specific amount of time. On the contrary, for you to establish a common law marriage, you must live in one of the handful of states that recognizes it and meet several other requirements.

The benefits of common law marriage may include inheritance rights, property division, and alimony upon the termination of the relationship.

Currently, only Colorado, District of Columbia, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah recognize common law marriage. A few other states, including Georgia, Idaho, New Hampshire, Oklahoma, Ohio, and Pennsylvania may retroactively recognize a common law marriage if you and your spouse satisfied the requirements before the state banned it.

If you live in a state that currently recognizes common law marriage, you'll need to demonstrate the following before the state accepts your relationship:

  • you must live together for a significant amount of time (no state defines the time limit)
  • you and your partner live as and portray yourselves to your friends, family, and community as a married couple, typically meaning you share the same last name, refer to each other as "spouse," "husband," or "wife," share bank accounts and real property, and/or file a joint tax return, and
  • you both must have the capacity to marry (at least 18 years old, of sound mind, and not already married to someone else.)

If you lived in a state that recognized common law marriage and relocated to one that doesn't, the new state may recognize your relationship for inheritance and divorce purposes.

Common Law Marriage Versus Legal Marriage

In most cases, common law marriage is not a good alternative to legal marriage. Some couples want to avoid a nasty divorce, so they set out to establish a common law marriage instead. However, if you live in a state that recognizes common law marriage, the only way to end the relationship is to ask the court for a divorce.

You'll still need to go through the formal process of property division and custody and support determinations, in addition to asking the court to terminate your relationship legally. Divorcing from a common law marriage may first require a trial to prove to the court that you were in a legally enforceable marriage, which could take more time and money than a divorce from a traditional marriage.

Some couples want a common law marriage for inheritance purposes, but the process isn't any easier for common law marriages than traditional marriage, in fact, it's more complicated. If your common law spouse dies without a will, your spouse's family may petition the court for the property because the two of you weren't legally married.

Before you can proceed and collect your rights as a spouse, you'll need to prove to the court that your common law marriage is legal. If you fail to meet even one of your state's common law marriage requirements, you risk losing your inheritance.

Common law marriages also prove complicated if you'd like to sue on your spouse's behalf. For example, if your spouse dies in a work accident, you can't sue the employer for neglect unless you can demonstrate that you and your spouse have a legally enforceable relationship. The court would require you first to prove that you meet the requirements for a common law marriage before you can proceed with the suit for neglect. Had you and your spouse formed a traditional marriage, the court would allow you to sue immediately on behalf of your spouse.

Is There Anything We Can Do to Protect Ourselves and Prove Our Relationship?

Yes. Couples in a common law marriage can create legal documents which may help to prove their intent to enter into a common law marriage by visiting an experienced attorney in their state.

Attorneys can also draft estate plans, trusts, wills, and advanced directives that establish inheritance rights without the need for proving the common law marriage to the state later.

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