A traditional marriage is when two people, often in love, get together and officially get married. With white dresses and a sharp tuxedo for the groom, promising vows read aloud, a unanimous ‘i do’, a marriage is surely a celebration with loved ones.
However, for some people marriages may get complicated, which is why they choose to live as a couple without getting married. In many states of the country, common law marriage is a norm, but it isn’t legal everywhere. In such states, for you to be married, you want a proper ‘i do’ ceremony.
A common law marriage is an unofficial marriage, where if two people are living together for years, they start to mention themselves as spouses for the world, without actually getting married.
This is a common practice in many states, but without a marriage certificate the relationship isn’t legal. And no, for a couple who lives together for a while doesn’t automatically get married- that scenario is not common law marriage.
Common Law Divorce
There is no such thing as a common law divorce, whether you are married in the conventional style or common law, the divorce process is going to be the same. You will have to prove that there was a common law marriage in the first place and then file for divorce.
This means hiring a divorce attorney, sorting out custody and child support, alimony and other various aspects. The process will be the same and you will go through the same legal obligations.
To avoid paying alimony, one spouse may claim that there was never a common law marriage in the first place, then to combat it you may show joint tax accounts, insurance policies, joint mortgages etc.
Common Law Separation
One thing is important to point out in such situations, that there is a difference between a marriage and a mere relationship. If the couple has never had an official common law marriage (not the traditional one either), they are only in a relationship. And no matter how many years they’ve been together, they can easily separate if they feel the relationship isn’t working out anymore.
A common law relationship can be ended when the two of them sit together and decide they would like to end things, there is no need for a legal process and certainly no need for a divorce in a common law separation.
Cohabitation is referred to as a couple living together without being married. By qualification, in the U.S., cohabitation doesn’t consequently make lawful rights and commitments regarding matters like property distribution or financial support or inheritance rights. Rather, cohabiting couples need to talk about these things, or even have them written down to define ownership rights.
Many states have yet to give reasoning why they would decline cases of cohabiting couples without deeming them legal, however, the ones that do, say that legalizing this weakens the significance of the sacred relationship of marriage. The laws are solely a reflection of a thin line between marriage and cohabitation.
Cohabitation has proved to be more unstable than marriage; and this is one reason why couples are not willing to involve their financial status in the relationship. And law makers are respecting their freedom to choose. This is a significant standard of U.S. law. In the event that two individuals have not decided to go into a marriage contract, at that point lawmakers won’t treat them as though they have.
A few researches have proved that the U.S. law with respect to cohabitation has had more people suffer financially when their relationship ends, as compared to foreign countries where cohabitants are considered to be in a legal relationship. In any case, U.S. law regarding cohabitants has not changed at all considering the rising rate of live-in relationships in the country.
Common-Law Spouse Entitlement
When you end a common law relationship, there are lots of legal issues that come into place. For instance, if you separate, there will be a child custody issue if you have children. That means hiring a divorce attorney and going through the conventional process of divorce.
If one person from the relationship dies, the surviving partner cannot automatically assume inheritance of property because there wasn’t a legal relationship in the first place. That being said, the case will certainly be different if you both have joint-property or joint tax accounts.
Of course, a common law relationship couple will not enjoy the same benefits and legal support as that of a married couple. And it all depends if common law marriage is legal in your state or not. If it is not, you’re being treated like an unmarried couple in the eyes of the law.
Here is a list of states where common law marriage is considered legal:
- Colorado: Common law marriage contracted on or after Sept. 1, 2006, is valid if, at the time the marriage was entered into, both parties are 18 years or older, and the marriage is not prohibited by other law.
- Iowa: Common law marriage for purposes of the Support of Dependents Chapter (Iowa Code §252A.3) Otherwise it is not explicitly prohibited (Iowa Code §595.1A)
- Kansas: Common law marriage will be recognized if the parties are 18 or older and for purposes of the Divorce and Maintenance Article, proof of common law marriage is allowed as evidence of marriage of the parties (Kan. Stat. §23-2502; Kan. Stat. §23-2714)
- Montana: Not strictly prohibited, they are not invalidated by the Marriage Chapter (Mont. Stat. §40-1-403)
- New Hampshire: Common Law Marriage: “persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married.” (N.H. Stat. §457:39)
- South Carolina: allows for marriages without a valid license (S.C. Stat. §20-1-360)
- Texas: Common Law Marriage in specific circumstances (Tex. Family Law §1.101; Tex. Family Law §2.401-2.402)
- Utah: Utah State. §30-1-4.5
You need to be sure about one thing: is yours a common law marriage or a common law relationship? This difference may not matter too much right now, but it will when and if you’re getting separated.
A common law marriage will go through the same divorce process: hiring attorneys, fighting child custody, alimony etc. A common law relationship can be ended verbally, when one of them clearly says they want nothing to do with their partner anymore- just like couples break up!