Common Law Confusion

written by Jim Duzak |

Of all the legal concepts related to marriage and divorce , common law marriage is probably the most misunderstood. I’m willing to bet that at least ninety percent of the people who think they have a common law marriage don’t have one. And an erroneous assumption in this matter can be a costly one.

Common law marriage has historically been recognized in only a small number of states, and that number has been shrinking in recent years as states have “prospectively” abolished it. (For example, in Pennsylvania no cohabitation arrangement that began after January 1, 2005 can be considered a common law marriage ). As of today, only ten states, plus the District of Columbia, recognize “new” common law marriages.

And no state automatically grants common law marriage status solely on the basis of cohabitation for a particular period of time, or the fact that a couple has kids together or owns a home jointly. In the jurisdictions that recognize common law marriages, there still has to be proof of an “intent to be married.” Proof of intent might mean having to show that you filed joint income tax returns, or that you used the same last name, or that you both wore wedding rings. One way or the other, you have to come up with credible evidence that the two of you consistently held yourself out as a married couple.

If the evidence isn’t strong enough, or if you live in one of the forty states that refuse to recognize common law marriage , you’ll be out of luck in claiming the inheritance or survivor rights that married people are often entitled to. And even in a common law state, you may find yourself in court fighting your (supposed) common law spouse’s relatives. For example, if you move in with a man who has a child from a previous marriage or relationship, and he eventually dies without a will, that child may argue that the two of you never satisfied the “intent to be married” requirement. If the child prevails in court, you would be denied the automatic one-third of the estate that is usually awarded to surviving spouses when there was no will.

Nor can you get the benefit of your state’s divorce laws or community property laws if you don’t have a recognized marriage in the first place. It’s true that in some states you can file a “palimony” action after the break-up of a non-marital cohabitation, but such actions are usually successful only when there was a specific promise or contract that was violated...

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