Is Common Law Marriage an Alternative to the Real Thing?

Only a few states still recognize common law marriage.

by Rebecca Berlin

There are many reasons why people choose not to get married, from the fear that marriage will inevitably lead to divorce to the simple desire to avoid the ceremonial formality that is associated with a marriage. For those who choose not to get a marriage certificate, is a common law marriage a viable alternative? The answer depends on where you live and what your reasons are for avoiding the real thing.

First of all, a common law marriage cannot be established in most states. Only Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah, as well as the District of Columbia, recognize common law marriages. New Hampshire recognizes common law marriages only for the purposes of inheritance. In any other state the only marriage that is recognized as valid is an official one. However, if you enter into common law marriage while living in one of the states that permits them, and then move to a state that doesn't, the new state should recognize your marriage as being legally entered into in the other state.

Another thing to consider is that it takes more than just living together to have a common law marriage. Not every couple that lives together intends to be married. The intention to be married is one of the required elements to create a common law marriage. Another element that is necessary to create a common law marriage is that the couple must present themselves as married to others. This means referring to each other as the other's husband or wife, using the same last name, filing joint tax returns, and things of that nature.

Suppose you opt for the common law marriage believing that, if the relationship ends, you'll avoid a nasty divorce proceeding. This is a bad reason to have a common law marriage. A common law marriage is legally recognized as a marriage and the way to end it is by getting a divorce. You won't be able to escape the formalities on this end as you did at the beginning. In fact you might find your divorce a little more complex, because first there will have to be a trial to prove whether or not you were married. If the court decides that your relationship was a common law marriage, then you'll need to get a divorce to end it.

The problem of proving whether or not you are married under the "common law" can plague you even if you don't want a divorce. This is because the marriage relationship involves various legal rights, and if you want to exercise any of those rights, you may find yourself being challenged in court. Consider the following scenarios.

Your common law wife is killed in an automobile accident. The accident is the other driver's fault and you want to file a wrongful death lawsuit so that you can be compensated for your loss and your deceased wife's loss. In order to have standing to bring the suit, you need to have a legally recognized relationship to the deceased. The issue of whether or not your relationship constituted a common law marriage may end up being litigated.

Your common law husband dies without a will. You don't have any children together. You could end up in a court fight with his parents (or other close relatives) about who should inherit his property. They will be claiming to be entitled to his property because the two of you were never married. You will be trying to prove that your relationship constituted a common law marriage.

These and various other legal rights are impacted by the marriage relationship. Having a common law marriage could require you to go to court to prove your married before you can exercise your rights as husband or wife. If your intent is truly to be married, you are probably better off avoiding a "common law" marriage.

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