There are many misconceptions surrounding the subject of common-law marriage. The most well-established myth is that once you are together for seven years, yours is automatically a common-law marriage. This is incorrect. The fact that you are cohabiting is not, by itself, enough to instill the legal rights of unmarried partners. There is no legally prescribed number of years that a cohabiting couple have to be together for their relationship to be classified as a common-law marriage.
What is a common-law marriage?
Whether or not a couple is in a common-law marriage depends on that couple’s actions. Only 11 states still recognize common-law marriages, and the criteria for establishing such a relationship differ by state. (You should investigate the family law requirements in your state or consult with a family law attorney to verify this.) While the fact that a couple has been living together is important, the other criteria will include one or more of the following:
- The partners considered themselves to be married.
- They consented to the marriage.
- Both parties are capable of entering into a marriage (i.e., not minors).
- They are legally free to marry.
- There is an agreement to marry.
- The couple presents themselves to others as married.
- They are recognized in the community as a married couple.
- They assume marital rights, duties and obligations.
If your relationship is a common-law marriage in your home state and you relocate to a different state, that new state is likely to recognize your status as common-law married. This is the case even if the new state is one in which common-law marriage cannot be contracted. In advance of any move, though, you should ensure that you have taken every action necessary to satisfy the necessary criteria in your home state.
The Legal Disadvantages of a Common-Law Marriage
The main disadvantage is the requirement to prove the existence of the marriage in order to conduct certain transactions. Unlike couples who go through a formal marriage ceremony, you will not have a marriage certificate or license to show as proof of your marriage.
You may wish to acknowledge your common-law status by changing your last name, which can be done by consistently using a new last name. (However, your financial institution and other government agencies may insist that you provide court documentation legally recording the name change.)
The disadvantages of common-law marriages further become apparent when trying to resolve issues surrounding death, divorce, medical decisions and taxes.
1. Death of a Spouse
The death of a common-law spouse can create complications if their wishes were never documented. If you are named as a beneficiary to any life insurance or retirement benefit policy, you are entitled to these, and if you are a signatory to a joint bank account, you can claim the proceeds of the account.
If you are not a documented beneficiary and your spouse dies intestate, you will be entitled to inherit the assets via hereditary succession, but you will need to prove that you were married in order to inherit. Your spouse’s close relatives might provide sufficient evidence to contradict your declaration of marriage and challenge your right to inherit in court. The main causes of contention will likely include the property you lived in together, monies held in separate bank accounts and vehicles titled in the deceased spouse’s name.
2. Divorce: Child Custody and Division of Property
If your relationship has irretrievably broken down, you should consult a divorce attorney. Although a couple in a common-law marriage do not go through a formal marriage ceremony, they will have to go through a formal divorce process to dissolve the marriage.
A couple in a legally recognized common-law marriage cannot achieve a legal divorce merely by separating or by one spouse moving out of the marital home. Either spouse will need to file a petition for divorce or dissolution in the relevant state.
The children of a common-law marriage are subject to child custody deliberations in exactly the same manner as a traditional divorce. If the parties to the divorce cannot agree on custody issues, a court will decide what is in the best interests of the child after hearing representations from both parents.
Contrary to popular belief, any house owned by one common-law spouse will not automatically be split 50-50 when the couple part company. The person recorded on the property deeds as sole owner is generally entitled keep the house or to sell the house and keep the proceeds.
Usually, both parties must be named on the property deeds as owners to ensure that both get a share of the sale proceeds. However, if you have lived together for an extended period of time, however, the court in your state may recognize your right to an equitable share of the proceeds.
3. Medical Decisions
Most states have a priority list of persons who are allowed to make medical decisions, and a domestic partner may be way down the list. In many states, you have to be a blood relative or formally married, or connected by adoption in order to make important decisions on your spouse’s medical treatment.
Some doctors may accept your claim to be a spouse, while others may require proof. The latter particularly applies particularly applies if there are other relatives; for example, adult children who challenge your right to make medical decisions for their parent. And, if the decision to be made is one as serious as switching off life support, you're likely to find resistance from the medics and or immediate family.
To avoid challenges such as the ones mentioned above, the couple would be advised to document their wishes in writing in advance. If you have a medical power of attorney, you have the authority to make the relevant decisions for your incapacitated spouse, regardless of your marital status.
4. Joint Tax Returns
You may wish to file joint income tax returns to take advantage of lower tax rates. The filing of joint tax returns is an indication of holding yourselves out to be a married couple, and the IRS will accept joint tax returns filed by a common-law married couple.
You can select the "marriage filing jointly" option if you both agree to file a joint return and if your common-law marriage is recognized in the state where the marriage first began. This means that you will still be allowed to file joint tax returns even if you now live in a state where common-law marriages cannot be contracted. If you separate and wish to file as "single" or "head of household," you must first dissolve the common-law marriage in court.