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The Affects Of Common Law Marriage In Divorce Cases



Common law marriage is a confusing topic for many co-habiting couples, because it may confer the legal status of marriage without either party signing the papers or having the ceremony. Some states recognize common law marriage, and many other states recognize common law marriages contracted in other states with the same legality as standard marriages.

To be common law married with someone, all you have to do is live with that person and publicly declare your marriage. This seems like a vague gray area of law, but it can be quite binding, especially where divorce and shared property are involved. While there is such a thing as a common law marriage, there is no such thing as a common law divorce.

To legally break up with someone with whom you've declared marriage in a common law state, you may have to go through complicated court proceedings. A divorce attorney would be a good advocate and ally in this situation.

Basic Rights Conferred By Common Law Marriage

If you are common law married, you can publicly behave like any married couple. This includes:

  • Purchasing property jointly
  • Filing joint tax returns
  • Purchasing joint insurance policies
  • Receiving spousal benefits from various employer-provided policies
  • Having medical visitation and decision rights
  • Having prison visitation rights
  • Receiving Social Security, Medicare, Medicaid and other state and federal benefits
  • Providing immigration and residency opportunities

Of course, if you take advantage of any of these rights, it adds more legal proof of your marriage. This may affect you in the future.

How These Rights Can Affect You Down the Line

You may have lived with someone for two years and filled out joint taxes because the return was better. Thinking nothing of it, that decision could come back to bite you if your co-habiting friend decides that he or she wants to leave you and receive alimony payments, property or even your inheritance if you pass away. Your ex common law spouse will point to the joint tax return or other documents and get friends to vouch for your "marriage" before a judge. This could result in a seemingly nonsensical ruling if you didn't actually believe you were married, because your actions in the past may indicate otherwise in a court of law.

This is a definite possibility when it comes to common law marriage, and it is why you should be aware if you live or have lived in a common law state. These states include:

  • Alabama
  • Colorado
  • Iowa
  • Kansas
  • Montana
  • Oklahoma
  • Rhode Island
  • South Carolina
  • Texas
  • Utah
  • Washington, DC

Other states, including Georgia, Idaho, Ohio, Oklahoma and Pennsylvania, have common law marriage grandfather clauses. If you're concerned about your common law marriage and how it might potentially relate to divorce proceedings, get in touch with an attorney today!