Living together without being married presents some misconceptions in regard to legal standing. Many people think that simply living in one home with a partner for a certain length of time means that you have a common law marriage and are entitled to that legal status. To find out why this is a myth and for more information about common law marriage, read below.
Common Law Marriage Requirements
Certain states do recognize common law marriages, and those that do have specific guidelines about the requirements. There is a general misconception that you must simply reside together for a certain length of time as a requirement for common law marriage to exist. In reality, cohabitation is just one of many requirements, such as:
- You must be qualified to be legally married and not:
- Under the minimum age,
- Already married to someone else, and/or
- Incapacitated or have an unsound mind.
- Both parties must have the same intentions; to live as a married couple.
- Both parties must "hold themselves out" to be a married couple. In other words, the couple represents themselves to the community, family and church as a married couple. Filing tax returns as "married filing jointly" is another way of demonstrating your status as a common law married couple.
Common Law Divorces
It stands to reason that if you meet the requirements for having a common law marriage, you must also use the legal system to divorce. You cannot simply cease living together; common law divorce does not exist. People who hold themselves to be common law married must pursue divorce through the traditional divorce means.
Problems often occur when only one party in the common law marriage desires that standing for divorce purposes. The other party contends that there was never a common law marriage, and therefore no legal divorce is necessary. The motivation behind this allegation is often tied to property division, debt division, child and marital support, visitation and custody issues.
Family law judges will normally decide whether or not there was a common law marriage based on the following questions:
- How long did the parties cohabit?
- Did parties share a common last name?
- Did the parties file joint tax returns?
- Did the parties raise children together?
- Did the parties own property together?
A consultation with a divorce attorney to learn about the common law rules in your state is vital. If your relationship is ending, it's important to know that you may have the same rights as a married couple, with the accompanying child and marital support protections and guidelines.