Common Law Marriages: Uncommon Divorces

Common law marriages are rare in the United States, with only 11 states recognizing them as legally binding unions. Nevada, renowned for its leniency in granting swift divorces, does not acknowledge common law marriages within its jurisdiction. To obtain a divorce in Nevada, couples must have a valid marriage license, emphasizing the importance of a formal, documented marriage. This distinction highlights the necessity of legal recognition for couples seeking the benefits and protection of marriage, such as alimony, while also simplifying the divorce process, sparing them from complex paperwork.

In the absence of such recognition, individuals involved in joint law partnerships may find themselves in a complex legal situation, requiring a lawyer’s expertise for advice and guidance in cases of cohabitation or disputes arising from financial matters, ensuring that love and partnership are legally recognized and protected.

What Is A Common Law Marriage?

When a couple has lived together for an extended period, presents themselves as a couple to family, friends, and the community, and intends to be married without undergoing a formal ceremony or procuring a marriage license, it is known as a common law marriage. Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes), South Carolina, Texas, Utah, and the District of Columbia are among the states that recognize common-law marriages.

Couples may be considered legally married in states that recognize common law marriage upon fulfilling specific criteria. Conversely, no nationwide standard exists, and the specifics may differ significantly. In the event of separation or divorce, this recognition can provide couples with rights typically associated with traditional marriage, such as spousal support and property division.

What Is the Reason for the “Uncommon” nature of Common Law Divorces?

The divorce process for common law marriages can be complex due to the union’s informal nature and the absence of official documentation. The same formalities that apply to traditional marriages apply to dissolving these relationships. However, establishing the existence of a marriage can be a challenge. Divorcing a common-law marriage is uncommon due to the following factors:

Demonstrating the Existence of a Common Law Marriage

One of the most significant obstacles to terminating a common law marriage is establishing the existence of the marriage in the first place. In the absence of a formal marriage certificate, courts may require substantial evidence to ascertain whether a couple is legally married. This may encompass testimonials from acquaintances or family members who can confirm that the couple pretended to be married, joint tax returns, cohabitation agreements, and shared finances.

Recognition Variances Across States

Complications may arise when a couple transitions from a state that recognizes common law marriages to one that does not, as not all states do. In states where common-law marriages are not recognized, courts may refuse to grant a divorce unless the couple can demonstrate that they established their marriage in a common-law state before relocating.

Property Division and Spousal Support

Like traditional divorces, common law divorces entail the division of assets and the potential determination of spousal support. Nevertheless, the absence of a legally recognized marriage can result in heated disputes over property or support, with one party potentially refuting the existence of the marriage. Common law couples must maintain comprehensive recordings of their shared assets, bank accounts, and financial decisions to safeguard their rights during a divorce.

Child Support and Custody

Similarly to any other divorce case, the divorce procedure must also address child custody, visitation, and support if a typical lawyer couple has children together. Although the status of one’s marriage will not affect parental rights, disagreements regarding property division may complicate other aspects of the separation. Regardless of marital status, child support calculations will continue to be determined by state regulations.

The Importance of Legal Representation

Due to the intricacies associated with establishing a common law marriage, it is imperative to retain an experienced family law attorney. Legal specialists can assist in navigating the intricacies of common law marriage dissolution, ensuring that all necessary evidence is collected and presented professionally. In addition, a proficient attorney will assist couples in resolving property division, spousal support, and child custody disputes, thereby facilitating the process.

Methods for Avoiding a Common Law Marriage Pitfall

Couples who reside together but do not desire to be classified as married should be transparent about their intentions. This can be accomplished by creating a cohabitation agreement that explicitly specifies that they are not married and delineates how they will manage shared property and finances. The formal procedure of obtaining a marriage license and conducting a ceremony can offer legal clarity and protection to individuals who desire the full legal recognition of marriage.

Legal Requirements by State

It is crucial to comprehend the precise prerequisites in the states where common law marriages are legally recognized, as the recognition of such unions varies significantly across the United States. The legal requirements for common law marriage in the states of the United States that recognize this form of marriage are as follows:

Colorado

Requirements: The couple must mutually consent to marital union and exhibit themselves as a married couple to the public (e.g., using the same last name, filing joint tax returns, referring to each other as spouses).
Cohabitation Period: There is no specific period limit.
Acknowledgment: Common law marriages are acknowledged.
Dissolution: The divorce procedure through the formal court system is comparable to traditional marriage.

Iowa

Requirements: The couple must have a public declaration of marriage, continuous cohabitation, and a present intent and agreement to be married.
Cohabitation Period: Continuous cohabitation is mandatory but has no minimum duration.
Acknowledgment: Indeed.
Dissolution: necessitates a formal divorce procedure.

Kansas

Requirements: Mutual consent to marry, a public declaration of marriage, and cohabitation.
Cohabitation Period: There is no specified duration.
Acknowledgment: Indeed.
Dissolution: necessitates a formal divorce proceeding.

Montana

Requirements: The couple must be competent to marry, agree to marry, cohabit, and exhibit themselves as married to the community.
Cohabitation Period: There is no established timeframe.
Acknowledgment: Indeed.
Dissolution: necessitates a formal divorce procedure.

The State of New Hampshire

Requirements: Common law marriage is only recognized posthumously for inheritance purposes.
Cohabitation Period: Before the demise of one partner, the couple must have resided together for at least three years.
Recognition: Exclusively for inheritance.
Dissolution: None.

South Carolina

Requirements: There are no specific statutory requirements; however, couples must generally consent to be married and exhibit themselves as a married couple to others.
Cohabitation Period: There is no minimum time requirement.
Recognition: Yes, but the state restricts its recognition of new common-law marriages.
Dissolution: necessitates a formal court divorce procedure.

Texas

Requirements: The couple must consent to marriage, reside in Texas, and publicly declare their marital status. Additionally, couples can submit a Declaration of Informal Marriage to the county registrar.
Cohabitation Period: The couple must reside together, but there is no specific duration.
Acknowledgment: Indeed.
Dissolution: Divorce necessitates court intervention.

Utah

Requirements: Common law marriages are not automatically recognized in Utah; however, the courts may establish one based on cohabitation, the intention to marry, and a public declaration of the relationship.
Cohabitation Period: There is no predetermined duration; however, a court must determine sufficient evidence of cohabitation and intent.
Recognition: Yes, provided that a court determines that it is appropriate.
Dissolution necessitates a divorce through the judicial system.

District of Columbia (Washington, D.C.)

Requirements: The couple must mutually consent to be married, cohabit, and exhibit themselves as married to the public.
Cohabitation Period: There is no minimum duration.
Acknowledgment: Indeed.
Dissolution: A formal divorce is necessary.

States that no longer recognize new common-law marriages but continue to recognize existing ones

Many states prohibit the establishment of new common-law marriages, but they continue to acknowledge those that were established before a specific date. These consist of:

Alabama: Recognized if it was established before January 1, 2017.
Georgia: Recognized if it was established before January 1, 1997.
Idaho: Recognized if it was established before January 1, 1996.
Ohio: Recognized if it was established before October 10, 1991.
Pennsylvania: Acknowledge whether it was established before January 1, 2005.
Oklahoma: Although common law marriages are still technically permissible, the state has begun to restrict its acceptance of new ones.

Common Obstacles in States Without Common Marriage Law

In states that do not recognize common law marriages, couples who reside together for an extended period are not granted the same legal rights and protections as married couples. This can pose obstacles, particularly in the following areas:

Property division: Property or assets acquired during the relationship may not be automatically allocated to unmarried partners.
Spousal support: In general, unmarried couples are not eligible for alimony or spousal support.
Inheritance rights: Common law spouses may only have inheritance rights if they are stated explicitly in a will or legal document.

To prevent complications, unmarried couples in non-recognition states should consider drafting legal agreements, such as cohabitation agreements, to express their intentions regarding property, financial arrangements, and support.

Benefits of Common Law Marriage

Although common law marriage is informal and frequently misrepresented, it has the potential to provide numerous advantages to couples who satisfy the legal requirements in states that recognize it. These advantages can be substantial, particularly for individuals who have cohabitated for an extended period without undergoing the formal matrimonial procedure. The primary benefits of common-law marriage are summarized below:

Legal Recognition of the Relationship

One of the primary advantages of common-law marriage is the legal recognition of the relationship in states that permit it. This offers many of the same legal rights and protections that traditional married couples enjoy without the necessity of undergoing a formal wedding ceremony or obtaining a marriage license. This acknowledgment can be particularly advantageous in circumstances that involve property division, spousal benefits, or inheritance.

Spousal Rights to Property and Assets

In a common law marriage, couples may be entitled to some assets acquired during the relationship. This encompasses financial accounts, property, and other shared resources. Regardless of the time they have lived together or contributed to the assets, a long-term, non-marital relationship partner may not have an automatic legal claim to them without common law recognition.

Right to Spousal Support (Alimony)

A spouse in a common law marriage may be entitled to spousal support (alimony) after the relationship terminates, similar to a traditional marriage. This is especially crucial for couples where one partner has provided financial support to the other throughout the relationship, such as when one spouse has remained at home to care for children or supported the other through education or career development.

Inheritance Rights

In states that acknowledge common law marriages, the surviving partner is frequently entitled to inheritance rights like a spouse in a traditional marriage. This encompasses the rights to property, financial accounts, and other assets if one companion passes away without a will. This legal recognition is essential for long-term, unmarried couples, as in states that do not recognize common law marriage, a companion may be excluded from inheritance.

Medical Benefits and Health Insurance

In numerous instances, a common-law spouse may be eligible for health insurance coverage under their partner’s plan like a spouse in a traditional marriage. Especially if one partner is uninsured or underinsured, this benefit can be crucial for couples who rely on the employment of one companion for health insurance.

Decision-Making in Medical Emergencies

Common-law spouses are frequently afforded the same rights as traditional spouses when making medical decisions for their partners. In a medical emergency, the other spouse may have the legal authority to make critical healthcare decisions on behalf of the incapacitated spouse. An unmarried companion may be excluded from this decision-making process if they are not recognized as a legal spouse.

Pension and Social Security Benefits

Some common law spouses may be eligible for Social Security and pension benefits in the case of a partner’s death or retirement. For example, a surviving spouse in a common law marriage may be eligible to claim Social Security survivor benefits in the same manner as a traditionally married spouse, provided that they satisfy the eligibility criteria in states where common law marriage is recognized.

Access to Divorce Protections

Although it may appear counterintuitive, common-law marriage offers the advantage of accessing divorce protection. This implies that a common-law spouse has legal protection for property division, spousal support, and other rights typically granted in traditional divorces in the event of separation. In the absence of this safeguard, an unmarried companion may be deprived of any entitlement to shared property or support, irrespective of the duration of the relationship.

Child Support and Parental Rights

Common law marriage can facilitate the establishment of parental rights and obligations for couples with children. Recognizing a common-law marriage can simplify the decision-making process regarding child support, visitation, and custody, as both parents have explicit legal rights to their children. Additional legal procedures may be necessary to establish paternity or custody rights without common law recognition.

No Requirement for a Formal Wedding

The informal nature of common-law marriage benefits particular couples. There is no requirement to organize and finance a formal wedding or to check the documentation for obtaining a marriage license. Common law marriage offers a means for couples to live together and present themselves as married without the formalities of traditional marriage while still obtaining legal rights.

Is Common Law Marriage the Appropriate Option?

Although common law marriage can provide substantial advantages, some couples may have better options. The traditional marriage process may be a more suitable alternative for individuals residing in states that do not recognize common-law marriage or couples who desire complete legal certainty. Furthermore, to prevent their relationship from being recognized as common law, couples who do not wish to be legally married may need to take additional measures, such as establishing a cohabitation agreement. Consulting with a family law attorney can assist you in comprehending your rights and obligations if you are contemplating a common-law marriage or are currently involved in one. In the event of separation or divorce, this legal guidance is especially crucial regarding the division of property, inheritance rights, and spousal support.

Child Custody Laws, Visitation, And Support In Nevada

The NRS governs child custody, visitation, and child support in Nevada. Section 126.036 states that “the liberty interest of parents regarding the care, custody, and management of a child is a fundamental right.” This emphasizes parental rights in child welfare decisions. Both parents must prove paternity to use these rights. Nevada law offers various paternity options.

Once paternity is established, parents have equal rights and duties, similar to those of married couples. This equality ensures that both parents are included in the care and support of their child, fostering a sense of respect and responsibility.

In circumstances where a child is born out of wedlock, and there is no presumption of paternity, or the guy has not recognized fatherhood, the court may grant physical custody to the mother. This may happen if the man knows his father but abandons the child. The court bases decisions on the child’s best interests.

If the mother leaves the child and the father takes over, the court may give him primary custody. This emphasizes that custody choices are focused on the child’s well-being, not the parents’ gender or marital status.

Nevada law emphasizes that the court’s visitation decisions are based on the child’s best interests, regardless of the parent’s marital status. The court evaluates many variables to determine a visiting schedule that will give the child a stable and caring environment.

Overall, Nevada child custody rules are designed to promote parents’ rights to care for their children. These laws prioritize establishing paternity and making custody and visitation decisions in the child’s best interests, regardless of parent relationship or marital status. This focus on the child’s best interests should reassure parents that the legal system is working to ensure the well-being of their children.

Property Division For Unmarried Couples In Nevada

In a community property state, such as California, all income and property acquired by a legally married couple during their marriage is considered jointly owned by both spouses. This means both partners have equal rights to the accumulated assets and income. In the unfortunate event of a divorce, the courts are responsible for equitably dividing these assets and other possessions between the two individuals. This division encompasses various property types, including real estate, vehicles, household furnishings, bank accounts (checking and savings), retirement accounts, pensions, and even family pets.

It’s essential to note that community property doesn’t apply to couples cohabiting without formal marriage. In such cases, any disputes that arise during separation are typically treated as civil matters rather than family court issues, primarily because these couples lack the legal obligations and protections that come with marriage.

Now, let’s explore different legal frameworks that can apply to property ownership and separation for both married and non-married couples:

Contract Principles

When a couple enters into a contract specifying joint ownership of assets or property and subsequently separates, civil law courts will assess the contract and make a final decision based on the principles outlined in the contract. This contract could be a cohabitation agreement, which serves as a legally binding document outlining the rights and responsibilities of each partner.

Joint Tenants

If a couple purchases real estate as joint tenants, they each possess an equal 50 percent share of the property, regardless of who made the down payment or handled the ongoing payments. The ownership structure implies that both names are on the property deed, signifying equal ownership. In case of separation, the property will be divided equally between the two parties. If they hold the property as joint tenants with the rights of survivorship, the death of one party would lead to the other inheriting the deceased party’s share of the property.

Tenants in Common

This arrangement allows a couple to jointly own property with distinct percentages of ownership shares. The division of the property upon separation is based on each person’s ownership proportion. If one of the partners were to pass away, their share of the property would become part of their estate and would not automatically transfer to the other party.

These legal frameworks and ownership arrangements are essential for defining the rights and responsibilities of partners in various forms of relationships, whether through marriage, cohabitation, or specific contracts. It’s crucial to consult with legal professionals, such as lawyers specializing in family law or real estate, to ensure that your interests are adequately protected and that all relevant legal documents and agreements are in place.

Additionally, it’s worth considering the implications of property ownership in matters like inheritance, should one of the partners pass away, and consulting legal experts for life-changing events or changes in the relationship. Friends and family can offer support and advice, but legal experts are essential for navigating complex legal matters.

Conclusion

However, common law marriages, uncommon in the United States, are associated with distinctive legal complications regarding divorce. Proving the existence of a common-law marriage and navigating the divorce process can be problematic without formal documentation. If you are in a common law marriage and contemplating separation, it is imperative to consult with an experienced family law attorney to safeguard your rights and guarantee an equitable division of assets. Although the concept of a “common law” marriage may appear straightforward, its “uncommon” divorces prove that informal unions frequently result in formal repercussions.

Frequently Asked Questions

What is a common law marriage, and how does it differ from a traditional marriage?

A common law marriage, unlike a traditional marriage, results from a couple living together for an extended period, presenting themselves as married to others, and intending to be married. However, they have not formally married or obtained a marriage license. The primary distinction is the absence of legal documentation, such as a marriage certificate. Despite this, in states that recognize common-law marriages, the couple may have the same legal rights and obligations as a formally married couple.

Are common law marriages recognized in all states?

Common law marriages are not recognized in all United States jurisdictions. Colorado, Iowa, Kansas, Montana, South Carolina, Texas, Utah, and the District of Columbia comprise these states. Furthermore, certain jurisdictions, such as New Hampshire, recognize common law marriage solely for inheritance. Other states may honor common law marriages if the marriage was legally established in a state that recognizes it.

What is the process for establishing a common marriage law to obtain a divorce?

To establish a common law marriage, courts typically require evidence such as shared finances, joint property ownership, cohabitation, joint tax returns, and testimony from peers or family. You will need to demonstrate that you and your companion exhibited the characteristics of a married couple and shared the intention to marry. The standards for the evidence that is required may vary from state to state.

What is the process for dividing property into a common divorce law?

Property division in a common law divorce is governed by similar principles to traditional divorce; however, the marriage must be established before this. Once the marriage has been established, the court will proceed with the division of property, assets, and potentially spousal support (alimony) in the same manner as it would for a traditional married couple. Assets acquired during the marriage are typically subject to equitable distribution, meaning they are divided equitably, although not equally.

Are common-law spouses entitled to the same rights to alimony or child support as traditionally married couples?

Yes, common law spouses in states that recognize marriage are generally entitled to seek spousal support (alimony) and child support in case of separation or divorce. Courts will evaluate factors such as the duration of the marriage, income disparity, and custody arrangements when making these decisions, similar to determining these rights in a traditional marriage.

Expert Legal Advice to Bring You Relief in Navigating the Difficulties of Common Law Marriages and Divorces!

We at Donn W. Prokopius, Chtd. Terminating a relationship is always complex, particularly concerning a common-law marriage. Although common law marriages are less formal than traditional marriages, dissolving them can be equally, if not more, intricate. Our experienced family law and domestic partnership attorneys in Las Vegas, Nevada, can offer you compassionate support and expert advice as you confront the distinctive obstacles of common law divorces.

Common-law marriages frequently require couples to establish their legal union before addressing matters such as property division, spousal support, and child custody. We are committed to assisting you in resolving these complexities while simultaneously safeguarding your rights and guaranteeing a just outcome. Common law relationships, like traditional marriages, have legal implications. However, with the appropriate assistance, reaching a resolution that is most beneficial for your future is possible.

Our legal team at Donn W. Prokopius, Chtd. We are unwavering in our commitment to protecting your interests. We are dedicated to facilitating the process and assisting you in establishing a secure future after divorce, whether it involves ensuring that you receive an equitable share of marital property or advocating for your parental rights. Please contact us today to arrange a consultation and allow us to assist you in navigating the intricacies of common law divorces with clarity and assurance.