In states that recognized them, common law marriages are given the same rights, privileges and obligations as conventional marriages, for example:
- The right to divorce
- The equitable division of assets and liabilities
- Preferable tax benefits
- The right to inherit the property of a spouse who dies during the marriage
However, while those in conventional marriages receive these rights and benefits automatically under the law, common law couples must often fight for them.
With a conventional marriage, you have gone through the process of formalizing your marriage through ceremony and paperwork. So, you have proof of a formal marriage that is legitimized and entered as a public record.
A common law marriage, is essentially an agreement between you and your partner to live together as man and wife. But, only you and your partner really know if you truly intended to be married.
So, when you want to divorce, you first have to prove that a marriage actually exists. In fact, you are not even entitled to a divorce unless you can do so.
This can be particularly problematic if the your partner decides to debate the fact that you had an agreement to be married.
If you are unable to prove that the two of you intended to be married, he or she may simply walk away from the relationship, leaving you with nothing but the bills.
Furthermore, if your partner dies without leaving a will, you will not be entitled to any survivorship benefits or to inherit his or her estate, until you can prove that you were married.
How a common law marriage agreement can help
If you happen to be a common law couple and want to avoid these issues, you can draw up and sign a common law marriage agreement with your partner.
A common law marriage agreement is an agreement between two people who have decided to enter into a common law marriage. The agreement sets out how the couple’s assets and debts will be distributed in the event they divorce or if one of them dies.
For all intents and purpose, a valid and enforceable common law marriage agreement can give you the same protection you would enjoy if you were conventionally married.
Drafting a valid and enforceable common law marriage agreement
There are 4 fundamental rules you should be aware of when drafting your common law marriage agreement:
- Complete disclosure of assets and debts- The two of you must be totally forthcoming with regard to your assets and debts. If it is discovered that either of you lied or concealed assets, a judge can nullify the entire agreement.
- It has to be signed by both parties- Like every other contact, you want to make sure that your common law marriage agreement is signed and notarized by both parties. That way neither of you can claim later that your signature was obtained fraudulently.
- Separate attorneys – Each party should have their own separate attorney when negotiating the terms of the agreement.
- Be fair – In order to be enforceable, the agreement must be fair and reasonable with respects to both parties.
What issue can a common law marriage agreement address?
Generally, couples are given a great deal of latitude to divide their property as they please. Therefore, the scope of a common law marriage agreement can be modest or extend to a wide range of property.
The typical financial matters dealt with in a common law marriage agreement will include:
- Property division – Who gets what when the marriage ends?
- Spousal support – Will there be alimony? If so, how much and for how long?
- Marital debts – Who is responsible for what bills?
- Insurance benefits – Will one party be responsible for medical insurance for the other? What happens with retirement funds or life insurance?
You can also choose to include what are referred to as “lifestyle clauses” to address any non-financial understanding that you wish to document, such as who will be responsible for cleaning the house, or how infidelity will be dealt with.
What should not be addressed in common law marriage agreement?
Dealing with the financial support of children can be one of the most difficult things to address in a common law marriage agreement. It’s important that your agreement does not attempt to place limits on any of the following:
- Child custody
- Visitation rights
- Child support payments
- What religion your children will be raised in
Courts frown upon attempts to restrict the rights of children and any endeavor to do so will most likely not be enforced. In these cases, the court itself will determine what arrangements will be in the best interest of the children.
Do you need a lawyer to draft your common law marriage agreement?
You do not necessarily need a lawyer to draft your common law marriage agreement. However, you are advised to be represented by a lawyer under the following circumstances:
- You and your spouse are drafting the agreement in less than ideal or even hostile circumstance. In this case, it is strongly advised that each of you is represented by your own separate attorney.
- When there is a large amount of financial assets and liabilities involved, or when your financial matters are particularly complicated for other reasons.
- If you decide to use a do-it-yourself common law marriage agreement, it is strongly advised that:
- You take into account future complications, such as a change in your working status or either of you becoming unable to work due to injury or illness.
- You make sure that you clearly declare all assets and liabilities. State law will govern any missing items or, as mentioned above, this could give the state reason to void the entire agreement.
- You make certain plans for debts and liabilities, for instance, to update the account names and information on certain credit accounts, where necessary.
For more specific information regarding the drafting of a common law marriage agreement that will be valid in your state, contact an experienced family law attorney in the state in which you and your partner live.