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What is a Common Law Marriage?

Couple photo
A Couple Walking

When a couple presents themselves as husband and wife and cohabitates for a substantial period of time they can be deemed married without the issuance of a marriage license or a ceremony.  Usually the couple dwells together for at least a year and are in an agreement to become married at a later date. Every state does not recognize or permit common law marriages. However, in most cases if a couple becomes “married” by common law in another state sister states will recognize it as a marital situation.

How does a couple become married by common law?

It is possible in some states for a man and woman to live together as long as they “intend to marry” and become spouses under common law. NJ family law does not permit common law marriages. In fact less than 20 states recognize common law marriages and some of those have stipulations. But in states which does permit common law marriages the couple must act like they are married. They should file joint tax returns, refer to one another as husband and wife, use the same last name and wear wedding rings. In many states which do recognize this as a marital relationship once the couple meets the requirements of living together as husband and wife, the state will be a valid a marriage and if it is ended will have to go through a family law attorney to obtain a divorce.

What about legal rights?

Each state has its own sets of laws governing common law marriages. In states which do recognize it as a legal union the spouses will have the same rights afforded to a married couple. However, in states which do not recognize the union a person may not be able to claim any of the jointly acquired assets and will not be entitled to any alimony, or palimony, if the union is dissolved. One partner may not have any say if the other is injured or becomes disabled. They may even be refused the right to visit their hospital room in some cases and should the partner die, they will not have any rights to an inheritance unless they were specifically mentioned in the will or estate plan. If one spouse becomes disabled or dies, the other will have the burden of proving that the union was valid otherwise they may be excluded from making any medical decisions. It is important to be familiar with family law in your own state and to speak with a local family law attorney.

What about moving to another state?

Marriage is recognized by every state. If a couple becomes married through common law in one state and then moves to another state that only allows civil unions by obtaining licenses and having a traditional ceremony, they will still recognize the marriage. This is due to the fact that the marriage was recognized as such by the legal system in the previous state which makes it a valid marriage in the new state of residence.

Can a common law couple get divorced?

In order for a couple who is married per common law to get divorced they must proceed through the same divorce process as those couples who are in a traditional marriage. The rights and obligations of those who are married by common law are the same and therefore to obtain a divorce the same steps are necessary. They will need to contact a family law attorney and file for a divorce which means filing paperwork, dividing up property and deciding on issues pertaining to children that may be involved in order to obtain a divorce.

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