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Common Law Marriage FAQ

Common Law Marriage FAQ

Common law marriage is an ancient doctrine that comes from the old English common law and can establish a legal marriage without some of the typical formalities.  The doctrine has few exact rules, and it is only recognized in a few states.  This has led to rampant rumors and misunderstanding of the law.  For example, many people think that if you live together with your partner long enough you will automatically be part of a common-law marriage.  It is not that simple, and to clear up the confusion here are some of the most frequently asked questions related to common law marriage.

What states recognize common law marriage?

According to the National Conference of State Legislatures, only the following eight states will recognize a new common-law marriage:

Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah.  

Couples in several other states could be in a common-law marriage if it was formed some time ago.  Those states and their cutoff dates include: Pennsylvania (2005), Ohio (1991), Indiana (1958), Georgia (1997), and Florida (1968).

How is a common law marriage formed?

Each state has its own requirements, and sometimes those requirements are a bit unclear.  But here are the most common elements to a common law marriage:

  • Intent: The couple must intend to be married.  This is often shown by one spouse saying something like “we are married in God’s eyes even if we do not have a formal ceremony.”  
  • Holding Out As Married: This will generally include actions like sharing a last name, calling each other husband and wife, establishing joint bank accounts, filing joint taxes, and owning property together.  
  • Capacity: Each person must have the capacity to marry, primarily meaning they must be of sound mind, cannot be married to anyone else, and they must be 18.  
  • Cohabitation: The couple must live together for a period of time that varies from state to state, often seven years.  

Can same sex couples use common law marriage?

Usually not.  Most common law marriage rules are gender specific to a husband and a wife and this has not been changed by recent court decisions.  

Can a common law marriage hold up in other states?

Yes.  Once a marriage is established by one state then all the other states will give it full faith and credit.  This means that a state that rejects common law marriage will honor a common law marriage established in another state.  

How can I end a common law marriage?

Once you are in an established common law marriage, the only way to end it is with a divorce under the same procedures as any other marriage.  This comes with all the normal procedures, including property division.  The main difference is that you will have to establish that you were truly married.

What happens when a common law a spouse dies?

When a spouse dies in a common law marriage, the other spouse is entitled to all the same inheritance rights as any other spouse. The only difference is that a common law spouse will have more difficulty proving the marriage.  


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