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What is Common Law Marriage? | Schmidt & Clark, LLP

A common law marriage is one in which a couple lives together for an extended period of time and considers themselves for all practical purposes as “being married,” without ever going through a formal ceremony or receiving a marriage license.
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What is the Difference Between Traditional Marriage and Common Law Marriage?

Marriage is defined as a legal union between 2 people, whereas a common law marriage involves 2 people who live together and present themselves as a couple without getting formally married. Fewer than a dozen U.S. states and the District of Columbia recognize common-law marriages.

What are the Requirements for a Common Law Marriage?

The most common requirements for U.S. states that allow common law marriage include:

  1. You must live together (amount of time varies by state).
  2. You both must have the legal right or “capacity to marry”.
  3. Both must be 18 years old (varies by state).
  4. Both must be of sound mind.
  5. Both must not be married to someone else.
  6. You both must intend to be married.
  7. You both must hold yourself out to friends and family as being a married couple.

Which States Recognize Common Law Marriage?

U.S. states that still recognize common-law marriages include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah and the District of Columbia.

However, there are nuances for many states that have common-law marriage. For example, Oklahoma has contradicting laws and New Hampshire only recognizes them for inheritance purposes.

What are the Advantages of a Common Law Marriage?

The main benefits of a common law marriage are that your relationship will be assigned the same marital rights and responsibilities as a formally married couple, but without you having to go through the formal marriage process. Common law marriage benefits are the same as those granted to legally married couples, which include:

  • Healthcare benefits
  • Hospital visitation rights
  • Jail or prison visitation
  • The right to make decisions about emergency or end-of-life medical care
  • Access to records
  • The division of property pursuant to divorce
  • Child custody rights
  • The right to spousal support
  • Rights of inheritance
  • Tax deductions and exemptions

What are the Disadvantages of a Common Law Marriage?

The primary disadvantage of a common law marriage is that even when your relationship meets the requirements listed above, there will still be no presumption that a marriage existed, so your marital rights will not be guaranteed.

In a formal marriage, both parties will go through the process of formalizing their marriage through ceremony and paperwork that will be filed with the government. So, you will have proof of a formal marriage that is legitimized and entered as a public record.

With a common law marriage, only you and your partner will ever really know what agreement the 2 of you have. People may hear you calling yourself husband and wife, but since it will not be formalized, it will be difficult to prove.

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