Fact or fiction: Five myths about common law marriage

Most people are fuzzy on the specifics of common law marriage. So let's start by putting one of the most common misconceptions to rest. If two people live together for seven years (or any other number of years), they aren't automatically common law spouses.

What is common law marriage?

Common law marriage dates back to medieval England. It came about due to transportation difficulties and limitations. Clerics and justices who officiated at marriages were not always able to travel to couples in rural locations. In such cases, the couple could establish a marriage by "common law."

Today, common law marriage isn't a result of geographic isolation, which might explain why it's been abolished in so many states. Now, it results from a couple's actions. A common law couple never obtains a marriage license or fulfills the state's statutory marriage laws. Typically, this means the couple has cohabitated for a period of time—usually a year or more—while having an agreement to be married. Also, they must present themselves to the larger world as husband and wife.

Common law marriage is not recognized in most states today. So regardless of how many years you live together, you don't have to worry about a common law marriage.

Which states recognize common law marriage?

States that do recognize common law marriage include the following:

• Alabama (if created before Jan. 1, 2017)
• Colorado
• District of Columbia
• Georgia (if created prior to 1997)
• Florida (if created prior to Jan. 1, 1986)
• Idaho (if created before 1996)
• Indiana (if created prior to Jan 1, 1959)
• Iowa
• Kansas
• Montana
• New Hampshire (for inheritance purposes only)
• Ohio (if created prior to October 1991)
• Oklahoma
• Pennsylvania (if created before September 2003)
• Rhode Island
• South Carolina (if created prior to July 24, 2019)
• Texas

If you want your relationship with your partner to be officially recognized, take the necessary steps to give legal effect to the relationship. In states that recognize common law marriage, once the requirements have been met, the marriage is typically treated like any other marriage.

Couples who do marry under common law are likely to have their marriage recognized in states where common law is off the books. The "full faith and credit" rule of the U.S. Constitution ordinarily compels sister states to recognize a marriage made valid under another state's laws.

Rights to protecting a family residence and dividing family assets are only granted to legally married couples.

Fact or fiction?

Despite what you may have heard, the following statements are false.

• Cohabitation alone does not constitute a common law marriage. While the requirements for common law marriage vary slightly among states, the two essential elements are cohabitation and "holding out." "Holding out" means the couple's actions tell the world they are husband and wife. For example, the woman might assume her husband's last name. Also, the couple files a joint tax return.
• The property bought by a common law spouse will be split half and half in the event of separation. Rights to protecting a family residence and dividing family assets are only granted to legally married couples. A common law spouse who is the sole owner of a shared residence may sell or mortgage property without consent and without splitting proceeds. Whenever a couple stops living together, the registered homeowner keeps the property. If you are planning to buy a home, consider doing so under a co-ownership agreement. That way both names will be listed on the deed as purchasers. Both partners will benefit from any increases in the home's value.
• If a couple has a child together, they must adopt him/her. Children from a common law marriage have the same rights as those from a legal marriage. Plus, common law parents have the same obligations as any other parent. This means parents don't have to adopt children if they have already acknowledged them as their own. The child may be given the mother's or the father's last name or a combination of the two names.
• Should a common law spouse die or become disabled, all assets automatically go to the surviving spouse. It will be up to the survivor to prove the marriage's validity. Your spouse's family may exclude you from medical decision-making or inheriting property.
• There is no such thing as common law divorce. Common law marriage isn't something to enter lightly. If you are married by common law and then decide to end the relationship, you will still require a legal divorce. In this way, common law marriages are similar to regular marriages: they are usually easier to get into than to get out of.

There is no simple test to see if a couple qualifies as married under common law. Unfortunately, this question of married or not most often arises in court.

Since the seven-years-to-automatic-marriage idea is only a myth, the court's determination of whether a common law marriage existed can be complicated. Some legal experts recommend that couples write, sign and date a simple statement saying they do or do not intend to be married. While common law marriage skirts legalities like a marriage license, this simple statement can prevent future burdens and offer protection should the need arise.