Top Facts About Common Law Marriage States for Couples

Introduction

A common law marriage is a legally recognized marital union established without a formal license or ceremony which, once established, grants the same legal rights and responsibilities as a traditional marriage. Contrary to the widespread myth, this status is not automatically conferred after a couple lives together for a specific period, such as seven years; in fact, no state that recognizes common law marriage has a time requirement. Instead, its validity rests on three core principles that must exist simultaneously: a mutual intent and present agreement to be married, public representation to the community as a married couple, and cohabitation as spouses.

The Official List: Which States Recognize Common Law Marriage?

The legal landscape of common law marriage in the United States is limited and shrinking. The clear trend among states over the past several decades has been toward abolishing this form of marriage in favor of the legal certainty provided by formal licensure. This trend explains why only a small minority of jurisdictions still permit the formation of new common law marriages.

States That Fully Recognize Common Law Marriage

The following jurisdictions currently allow couples to form a new common law marriage, provided all state-specific requirements are met:

• Colorado
• District of Columbia
• Iowa
• Kansas
• Montana
• Oklahoma
• Rhode Island
• Texas

States with Limited or "Grandfathered" Recognition

Several states have abolished the formation of new common law marriages but continue to recognize unions that were validly established before a specific cut-off date. This "grandfathering" approach prevents the invalidation of long-standing marriages.

• Alabama: Recognizes unions formed before January 1, 2017.
• Florida: Recognizes unions formed before January 1, 1968.
• Georgia: Recognizes unions formed before January 1, 1997.
• Idaho: Recognizes unions formed before January 1, 1996.
• Indiana: Recognizes unions formed before January 1, 1958.
• Ohio: Recognizes unions formed before October 10, 1991.
• Pennsylvania: Recognizes unions formed before January 1, 2005.
• South Carolina: Recognizes unions formed before July 24, 2019.

Special Cases with Unique Rules

A surface-level list of recognizing states can be misleading, as some jurisdictions have highly specific and nuanced rules.

• New Hampshire: Recognizes common law marriage for inheritance purposes only upon the death of one partner. It does not confer any marital rights while both partners are alive. To qualify, the couple must have cohabited for at least three years and been publicly known as a married couple prior to the death.
• Utah: Does not have a traditional common law marriage system where the status is passively acquired. Instead, a couple must file a formal petition with a court to have their relationship judicially recognized as a marriage. The court will then issue an order validating the marriage, which can be applied retroactively if all criteria were met. This means a couple in Utah cannot simply "be" common law married; they must take a formal legal step to have their status affirmed.

Are We Common Law Married? The Core Requirements

To determine if a relationship qualifies as a common law marriage, courts examine a combination of factors. While the specifics differ by state, four key tests are generally applied.

Capacity to Marry: The Legal Starting Line

Before any other elements are considered, both partners must be legally able to marry. This means that at the time the common law marriage was allegedly formed, both individuals were:

• Of legal age (typically 18 years old, though some states have exceptions for minors with judicial or parental consent).
• Of sound mind and able to give consent to the marriage.
• Not already married to anyone else (a person cannot be in two marriages, formal or common law, at the same time).

Intent to Be Married: A "Present Tense" Agreement

This is a critical mental element. Both partners must have a mutual agreement and a present intent to be married now, not at some point in the future. An engagement to be married or a promise to have a ceremony later is insufficient and can even be used as evidence against a common law marriage claim, as it demonstrates an intent to marry in the future, not the present. This agreement does not need to be a formal written contract; it can be verbal or inferred from the couple's actions.

Holding Yourselves Out as Married: Your Public Reputation

This element is the lynchpin of proof, as it provides the external, verifiable evidence of the internal "intent" to be married. A couple must consistently and publicly present their relationship to the world as a marriage. A "secret" common law marriage is a legal contradiction. The way a couple structures their social and financial life creates the legal evidence that defines their marital status.

Examples of holding out include:

• Introducing each other in public as "my husband," "my wife," or "my spouse".
• Using the same last name on documents or social media.
• Filing joint federal or state tax returns.
• Opening joint bank accounts, sharing credit cards, or co-signing for loans.
• Listing each other as a spouse on official documents like property deeds, leases, insurance policies, or employment benefit forms.

Proving It: What Counts as Evidence?

Because a common law marriage lacks a formal certificate, its existence must often be proven with evidence, typically in a court proceeding related to divorce, inheritance, or benefits claims. Not all evidence carries equal weight. Actions taken under penalty of law or on official documents are generally more persuasive than anecdotal claims. A single joint tax return, for example, could be more powerful evidence than years of being known socially as a couple.

Financial Ties: The Paper Trail of a Shared Life

Evidence of financial interdependence is among the strongest proof of a marital relationship.

• Joint Tax Returns: Filing as "Married Filing Jointly" is extremely compelling evidence, as falsely claiming this status constitutes tax fraud.
• Joint Bank Accounts and Credit Cards: Shared accounts and liabilities demonstrate a pooling of financial resources and mutual support.
• Joint Loans and Property: Contracts for major purchases like a home or car, or mortgages co-signed as spouses, are powerful indicators.

Legal and Official Documents: Putting It in Writing

Declarations of marital status on official forms are highly persuasive.

• Property Deeds and Leases: Listing both partners on a property deed or rental agreement as spouses.
• Insurance Policies: Naming a partner as a "spouse" and beneficiary on life, health, or auto insurance policies.
• Estate Planning Documents: Wills, trusts, and powers of attorney that explicitly refer to the partner as a spouse.
• Formal Declarations: Some states provide a mechanism for formalizing the union. Texas, for example, allows couples to file a "Declaration of Informal Marriage" with the county clerk, which serves as definitive proof. Utah's court petition process serves a similar function of creating an official record.

Witness Testimony: The Power of Reputation

The perception of the couple's relationship within their community is also relevant evidence.

• Affidavits and Testimony: Sworn written statements (affidavits) or in-court testimony from friends, family, neighbors, and coworkers who can attest that the couple held themselves out as married are commonly used.
• Statements for Federal Agencies: The Social Security Administration has specific forms for the couple and their blood relatives to complete to affirm the marital relationship when applying for benefits.

Rights and Responsibilities of a Common Law Spouse

Once established, a common law marriage is legally indistinguishable from a ceremonial one, conferring a full spectrum of rights and responsibilities. This includes the right to seek spousal support (alimony) upon divorce, the right to inherit property from a deceased spouse (even without a will), the authority to make medical decisions for an incapacitated spouse, and shared parental rights and obligations for children.

Property and Debts: How Assets are Divided

A critical consequence of marriage is how property and debts are handled upon divorce. The outcome for a common law couple depends entirely on the property laws of the state where the marriage was established.

• Community Property States: A minority of states, including the common law state of Texas, follow community property rules. In these jurisdictions, most assets and debts acquired during the marriage are considered "community property" and are owned equally (50/50) by both spouses, regardless of whose name is on the title. Upon divorce, this property is typically divided equally.
• Equitable Distribution States: Most states, including common law states like Colorado and Iowa, are "equitable distribution" or "common law property" states. Here, property generally belongs to the spouse who acquired it. Upon divorce, the court divides the marital property in a way it deems "equitable" or fair, which does not always mean an equal 50/50 split. The court will consider factors like the length of the marriage and each spouse's financial contribution.This distinction means that the financial outcome of a divorce for a common law couple in Texas can be fundamentally different from that of a couple in Colorado, highlighting that it is not just if a couple is common law married, but where, that determines their property rights.

Federal Benefits: Taxes and Social Security

Federal agencies like the IRS and the Social Security Administration (SSA) do not have their own definition of common law marriage; they defer entirely to state law. If a marriage is valid in the state where it was formed, it is considered valid for federal purposes.

• Federal Income Tax: A common law married couple must file their federal taxes using a married status, either "Married Filing Jointly" or "Married Filing Separately." They are not permitted to file as "Single". Filing jointly typically offers a larger standard deduction and eligibility for more tax credits.
• Social Security: A common law spouse is eligible for the same spousal, survivor, and death benefits as a ceremonially married spouse. The claimant must prove the marriage's validity to the SSA according to the laws of the state where it was established, often by providing signed statements from themselves and blood relatives.

Is Your Marriage Still Valid?

A common question for couples in our mobile society is what happens to their common law marriage when they move to a state that does not recognize it. The answer is clear and rooted in the U.S. Constitution.

Yes, a validly formed common law marriage is recognized in all 50 states. This is because of the Full Faith and Credit Clause of the Constitution, which mandates that each state must respect the "public Acts, Records, and judicial Proceedings of every other State". A legally established marriage is considered such an act. Therefore, if a couple establishes a valid common law marriage in Colorado and later moves to California (a state that does not permit the formation of common law marriages), California must still recognize their marriage as legally valid.

The legal validity of the marriage is determined at the time and in the place it was created. A couple cannot move to a non-recognizing state and invalidate their marriage, nor can they live in a non-recognizing state and attempt to create a common law marriage by temporarily visiting a recognizing one. The "point of creation" is the decisive legal factor.

How to End a Common Law Marriage

Just as there is no "secret" common law marriage, there is no such thing as a "common law divorce". A couple cannot end their legal relationship simply by separating or agreeing that they are no longer married.

To legally terminate a valid common law marriage, the couple must go through a formal, court-supervised divorce proceeding, identical to that required for a ceremonial marriage. A formal divorce is necessary to legally resolve matters of property and debt division, spousal support (alimony), and child custody and support. It is also the only way to become legally free to remarry in the future.

The primary challenge unique to these situations arises if one partner disputes the existence of the marriage. In a traditional divorce, a marriage certificate serves as definitive proof of the union. In a common law divorce, the party asserting the marriage has the burden of proving to the court that it existed in the first place, using the types of evidence detailed previously. This can turn the divorce into a two-stage legal battle: first, proving the marriage existed, and second, litigating the terms of its dissolution. This creates a significant risk for a financially dependent partner, who may have to fund a complex legal fight just to establish their right to a divorce. Some states also impose time limits; in Texas, for instance, there is a rebuttable presumption that no marriage existed if a divorce is not filed within two years of the couple's separation.

Conclusion

For couples who cohabitate in a common law state but do not wish to be married, proactive and consistent action is required to avoid creating an "accidental" marriage, as the legal status is based on a pattern of behavior rather than the absence of a ceremony. To prevent this, partners must consciously establish a pattern of non-marital intent. Key steps include signing a cohabitation agreement that explicitly states the couple is not married, maintaining separate finances by avoiding joint bank accounts and titling assets individually, always filing tax returns as "Single," and refraining from listing each other as a "spouse" on official documents like insurance or leases. It is also crucial to be consistent in public by not using terms like "husband" or "wife" and correcting others who make that assumption, as daily financial and social habits can create a legally binding marriage if a couple is not vigilant.

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