Common law marriage is a wildly misunderstood concept in the United States. Many people believe that if domestic partners co-habitate for at least seven years then they are automatically deemed “married.” Unfortunately, this is not true in any one of the 50 states. So let’s clear up the myths and mysteries around common law marriage.
First of all, let’s put this in perspective. Only a handful of states even allow common law marriage anymore, and the number that do allow it keeps decreasing as those states realize common law marriage just ends up causing more problems than it is worth.
Now, you have probably heard that marriage is essentially just a contract. The contract is an agreement by two people to be married and take on all the rights and obligations that go along with marriage. Those rights and obligations are specified by each state’s statutes. So what’s the difference between traditional marriage and common law marriage?
Let’s start with traditional marriage. Surprisingly, the actual marriage ceremony is not required in order for people to be legally married. In most states, all that is required is that the two people:
Common law marriage occurs when the partners do not obtain a marriage license from the state. You can think of common law marriage as a marriage implied by law. The law is basically saying that, based upon the conduct of the two people, it is reasonable to assume that they intended to create a marriage. Although states differ somewhat in their requirements, here’s what’s generally required:
You live in a state that allows common law marriage at the time the common law marriage is formed (see our article, Which States Allow Common Law Marriage?).
After that, it does not matter if you later move to a state that does not allow common law marriages to be formed there. All US states recognize common law marriages formed in other states that allow it.
The two people live together for a significant amount of time. Some states specify how long this is, while other states do not. Two or three years is usually long enough.
There is evidence that the two people outwardly presented themselves as married. Evidence could include:
The two people actually intend to be married. You can’t “accidentally” become married just by living together and sharing finances. There must be an actual agreement to be married; however, this agreement can be shown by the partners’ actions, for instance, by telling others they are married.
Again, every state has its own specific requirements, so check them if you’re unsure. However, that’s the general gist of it. Some people tend to think that a common law marriage is somehow not as good as a traditional marriage. However, once the common law marriage is formed, the partners are considered married under the law and have all the same rights and obligations as traditionally married people. Marriage is marriage, it doesn’t matter how it was formed. Even the IRS recognizes validly formed common law marriages for tax purposes.
Signing an affidavit of marriage will help ensure your common law marriage is legally valid. In it, both partners swear that they are married to one another. Again, this will only work in states that allow common law marriages.
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