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There are misconceptions about what constitutes a common-law marriage. The most common assumption is that if you live together for a certain number of years, you automatically have a common-law relationship. This is not true, and there are other requirements to be met as well.

What is a de facto marriage?

A common-law marriage is a legal marriage between two people (same sex or heterosexual) who have not organized a marriage ceremony or filed a marriage license.

Providing a general definition of common-law marriage is difficult because laws vary from state to state. Today, few states allow new common law marriages. No common law state requires the exact number of years you must live together to be in a valid common law marriage.

“Common law marriage is a doctrine created by the courts that says that if a couple present themselves as a married couple for a number of years, but have not registered the marriage with the state, the couple will be considered married in the eyes of a court, ”says lawyer Kevin Tillson. “States have enacted laws recognizing these common law marriages, but severely limited their application.

Meet the expert

Kevin Tillson is the owner of the family-focused law firm Tillson Law PC in Sandy, Oregon. The firm’s expertise includes estate planning, probate and trust administration, business planning and real estate transactions.

Read on to find out everything you need to know about a common-law marriage.

The common law against marriage versus civil unions

Common-law marriage

Without a marriage license, your state may not have a way to document your common-law relationship. If you file for a divorce later, you may have legal difficulties with access rights, child support, property division, spousal support, medical rights, loss of survival and inheritance. .

“Oregon does not recognize common-law marriage, but in cases where the partners have separated, the courts in those situations will divide the assets based on each member’s contribution to the domestic partnership in the acquisition or increase in asset value over the course of the relationship. ”Says Tillson. “No spousal support can be granted. Dividing retirement accounts, bank accounts, and anything else that is not jointly owned can be difficult. ”

The three main things to know about a common-law marriage:

  • You may be eligible for most state and federal benefits granted with traditional marriage. Consult an attorney in your state.
  • Most states will recognize a valid common law marriage.
  • It is necessary to end a common-law relationship with divorce proceedings.

Wedding

Mr. Tillson defines traditional marriage as “a civil contract between the state and the two people who marry. Marriage is a creation of law and must be registered with the state (the reason you receive a marriage certificate). In exchange for the conclusion of the civil contract, the State grants the two persons a certain number of statutory rights.

The top three things to know about marriage:

  • It is a legal status with automatic rights, federal benefits, tax breaks and responsibilities.
  • Divorce laws are precise and comprehensive.
  • Some state laws provide that a surviving spouse automatically inherits all assets.

Civil unions

As with common-law marriage, laws on civil unions and domestic partnerships vary from state to state. It is wise to consult a lawyer before deciding which one is best for you. “Before Oregon and many other states recognized same-sex marriages as legal, the legislature created civil unions or registered domestic partnerships,” says Tillson. “Civil unions have been used as a workaround for states that were reluctant to remove the terms ‘man’ and ‘woman’ from the definition of marriage. Laws establishing civil unions gave individuals the same rights as those whose married couples were registered with the state, in the same way as a marriage.

In Oregon, the term “registered” is essential because in order to benefit from the rights of a married couple, the domestic partnership must be registered with the state. In Oregon, only same-sex couples can register a domestic partnership. After you register a domestic partnership or civil union, most state laws that apply to married couples apply to domestic partners.

The biggest difference between a marriage and a civil union is found under federal laws. Civil union does not guarantee that a couple has federal rights, except as expressly provided by the federal government.

The top three things to know about civil unions:

  • Same-sex marriages are legal in all 50 states and DC, so most states now recognize existing civil unions as legal marriages; therefore, fewer states offer civil union as an option.
  • You cannot file federal taxes jointly. Surviving spouse veteran benefits may not apply to civil unions.
  • Provides all the benefits of the state of marriage.

Requirements for a common-law marriage

Laws vary from state to state, so it’s best to contact your lawyer with any specific questions or concerns.

  • Both members of the couple should consider themselves living together as a married couple for a number of years.
  • The couple must present themselves as a married couple. They could open a joint bank account, buy property together, designate their partner as “my spouse” or share the same last name, file taxes jointly, wear wedding rings, etc., in a state that recognizes common-law marriage. .
  • Must be single and of legal age to marry.

States allowing common-law marriage

Only a few states still allow the establishment of common law marriages:

  1. Colorado: A de facto marriage contracted on or after September 1, 2006, is valid if, at the time the marriage was concluded, both parties are 18 years of age or over; there is evidence of mutual agreement and marriage is not prohibited by any other law. (Colorado Statute §14-2-109.5)
  2. Iowa: De facto marriage is intended for the maintenance of dependents. Otherwise, it is not explicitly prohibited. (Iowa Code §595.1A)
  3. Kansas: The State of Kansas will not recognize a common law marriage contract if either party to the marriage is under the age of 18. (Kan Statute §23-2502)
  4. Montana: Each applicant must be able to contract marriage by mutual consent, cohabitation and public notoriety. (MCA. Stat. §40-1-202 and MCA. Stat. §40-1-403)
  5. New Hampshire: People who cohabit and recognize themselves as husband and wife, and generally deemed to be such, for a period of three years, and until the death of one of them, will then be deemed to be legally married. (NH Stat. §457: 39). It is used to determine probate when the surviving spouse applies to the inheritance court for the estate of the deceased partner.
  6. Texas: Any marriage presumed valid. Refers to “informal marriage” and requires a signed marriage declaration to prove informal marriage in legal, administrative or other proceedings. (Tex. Family law §1.101; Tex. Family law §2.401-2.402)
  7. Utah: Recognizes marriage that is not celebrated as legal, if a judicial or administrative decision establishes that it results from a contract between a man and a woman. Other requirements apply. (Utah Statute §30-1-4.5)
  8. District of Colombia recognizes de facto marriage and, with Rhode Island and Oklahoma; validity is usually decided by case law.
  9. Caroline from the south: The South Carolina Supreme Court judge abolished unlicensed marriage on July 24, 2019.


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