Common law marriage is a type of marriage where a couple gets all the benefits a regular married couple has, but they never actually went through with the ceremony. It does sound a bit confusing especially taking into consideration the fact that many states do not recognize this form of marriage. In reality, only 11 of them do.
However, interestingly, even though these states do not recognize common law marriages for their citizens, they will accept it if the couple has entered this form of union in some of the other 11 states. Once again, this is not true for all of them. In this article, we are going to tell you more about this type of union, list some requirements, and also discuss what happens when people decide to get separated.
What is common law marriage?
We have already provided you with the definition, but we are going to explain it a bit further. In layman’s terms, common law marriage is a legal form of the union even though the couple didn’t obtain a marriage license and didn’t attend the ceremony. Still, a state recognizes them as a formally married couple and it provides them with all the privileges other couples receive.
What are the requirements?
As it is to be expected, there are certain requirements that a couple has to meet so that one of these 11 states would recognize their marriage as common law one. If you do not live in one of these states, there is absolutely nothing you can do, and maybe it is time to start thinking about the move.
First of all, you have to be of legal age. This is to be expected since a person cannot enter a formal marriage if they do not meet this requirement. This is something that formal and common law unions have in common.
Secondly, neither of the partners can be married. Even though there won’t be a traditional ceremony, still it is unacceptable if one of the individuals is already married to someone else.
Furthermore, you must represent your union as a marriage to others. This means that you should call each other husband / wife, have the same surname, and you can even carry wedding bans if you want to.
You must come to an agreement that from now on you will be married. In addition, depending on the state, you might not be able to move in the future. For example, if you live in Texas, you would have to stay there upon making this marriage agreement.
Finally, you have to live together for a certain period of time. This is another thing that varies between different states, but you have to remember that cohabitation is an important requirement.
How to prove that you are married?
This is something that interests a lot of couples since well, they won’t have a legal document such as a marriage license. We have already mentioned that the person should take their partner’s last name. Moreover, you can file for joint tax returns, make joint purchases, open a joint bank account, and apply for a loan as spouses.
Also, you can put your spouse’s name on your health insurance and make them the beneficiary of the policy, sign different types of contract together, as spouses, and naturally, have children together.
What happens in case of divorce?
There is one thing that you have to understand. The rules and laws that we are going to explain only apply to states that recognize the common law marriage. When it comes to the others, since there is no marriage, there cannot be a divorce. There are two things that you probably want to learn about – child custody and property division. We are only going to tell you some basic things about these two, and if you want to learn about them in great detail or even consult a lawyer, visit rightlawyers.com.
The biggest misconception is that if a couple ends this type of union they would have to adopt the child they share. These children have the same rights as the ones from traditional, legal marriages meaning that the law is the same.
For the mother to get child support, and for the father to get visitation rights and custody, the paternity has to be determined. Once this is done, both of the parents have the same rights as well as obligations when it comes to raising the child.
In case that the paternity is not established, the mother can get the primary physical custody of the child. This can also happen if the father knows about the child, but he has chosen to abandon them. On the other side, a father can get full custody of the child if the mother was the one who abandoned them, and also if the father has been taking care of the child on his own.
Generally speaking, regardless of the fact whether the parents were legally married or not, the court will assign the custody and visitation rights upon determining what is in the child’s best interest.
You certainly know how this division occurs when a couple gets a divorce. Everything they earned and accumulated during the marriage is divided equally between them. This is another popular misconception when it comes to cohabiting couples.
If one of the spouses is a sole owner of a property or any other asset, they can sell it without the other person’s consent and they also have the right to keep all the proceedings for themselves i.e. they do not have to share the money. This is the main reason why these couples are advised to sign the contract together when buying a house, a car, etc. Nevertheless, keep in mind that if you get separated, both of you will have to pay off the debt.
On the other hand, if a couple can present the contract that proves both of them are owners of a property, the civil court will review it and make the property division according to the principles in the contract.
Furthermore, if a couple owns a property and both sides are listed as joint tenants, both of them get half of it in case they get divorced. No, it doesn’t matter if one side has invested more money in the estate than the other. In case there is the right of survivorship, if one of the spouses dies, the other inherits all the shares i.e. they become sole owners of the whole property.
Finally, a couple can opt for tenants-in-common which means that their shares of the estate won’t be the same. They will be determined individually, and if the couple gets separated, the property will be divided according to the shares.