Common Law Marriage vs. Marriage

What you need to know about Common Law Marriage vs. Marriage

This article was written by Tania Bhattacharya on behalf of Sherley Altidor. Edited by Lynn Joseph

Alternative to marriage: common law marriage

If you’ve ever wondered what the alternative to marriage is and what a common law marriage entails, you’ve come to the right place. Today, we’re going to break down the differences between the two in order to help you make the most informed decision that you can make with your life partner about how you prefer to live out the rest of your lives in your relationship. With cohabitation increasing around the world, it’s important to know your options and your rights with each of those options.

What is marriage?

So let’s start with marriage. Marriage is most commonly known around the world, so this will be a quick recap of what the acting of getting married entails and what that means legally. Marriage is a lawful union between two people which requires a ritual ceremony with witnesses and a certificate in most US states. We are all familiar with the legal benefits of marriage, but many would argue that it most importantly comes into play when the “sickness” and “death do us part” portions of the vows come into place. The spouse holds all of the cards. In a common law marriage, you don’t.

Also read: Saying Goodbye to Being the Side Chick

In a couple of states, when you and your better half are living together long term but do not say your vows in a service, in front of witnesses, your relationship falls under common law marriage. In this situation, there are a set of laws that must be followed in order to claim similar financial benefits that a traditional marriage demands if you choose to take advantage of those privileges.

The Essentials of Common Law Marriage: What You May Not Know

Let’s look at some of the common law marriage basics:

1. Once you qualify for your state’s common law marriage rules, you receive maximum monetary benefits such as federal benefits of a married pair.
2. The District of Columbia and nine other states consider common law marriages legitimate. Know your state’s law to ensure you meet all requirements as many states do not recognize common law marriages contracted before a certain date. This doesn’t mean that your common law marriage is invalid if you visit one of these states. It simply means you cannot begin a common law marriage in this state as of today. Do your research.
3. You will have to divorce your partner formally while terminating a common law marriage. There is no common law divorce, just divorce. Actual divorce.
4. When you move out of your state, consult with an attorney regarding your position once you leave the state. This is very important to handle before entering into another relationship to avoid holding up moving onto a marriage with someone else due to lack of tying up loose ends with a common law marriage. 

Common Law Marriage: The Rules

Though common law marriages, unlike marriages, do not have a license, you do still need to abide by certain conditions such as:

• You must live together for some considerable time. Though people think 7-10 years is the necessary time span, no US state is clear about any exact period for cohabitation. Most states generally acknowledge a long time partnership though after one year of living together but every state is different so do your research.
• You must be a heterosexual pair (or, as of June 26, 2015 thanks to the Supreme Court civil rights case Obergefell v. Hodges, a same-sex pair) living together in a state recognizing common law marriages.
• You and your partner are mentally sound.
• You are not married to anybody else.
• Acquaint yourself to neighbors, colleagues, friends, and associates as a married pair. Call each other as my wife or my husband, using the last name.
• Make sure you have joint bank accounts, credit cards, and file joint tax returns.

The US States Recognizing Common Law Marriages

The states recognizing common-law relationships are Kansas, Iowa, Colorado, Rhode Island, Montana, South Carolina, New Hampshire, Utah, and Texas.

A few states recognize common law marriages by a particular date. These states are Georgia (January 1, 1997), Alabama (January 1, 2017), Ohio (October 10, 1991), Idaho (January 1, 1996), Pennsylvania (January 1, 2005), and Oklahoma (November 1, 1998). Note that couples in Pennsylvania do need to exchange marriage vows.

Financial Impact of Common Law Marriage

Couples who fall under common law marriage enjoy similar financial benefits as legally married pairs. These benefits include:

1. Thecouple qualifies to receive Social Security benefits. However, the couple needs to prove how many years they have been living together in the state.
2. Gift tax exemption. Save those receipts.
3. The couple is eligible for company benefits (health insurance, for example) through their spouse.
4. You can demand deductions for mortgage interest, provided you co-own property and.or have children together.
5. You can claim your partner’s property, provided you have a legitimate will. However, if your partner passes away, his or her children, as well as other members of the family, would enjoy inheritance rights, and you would not.

Also read: Does Physical Attraction Matter In A Relationship

Wrapping up

There is much to think about with you and your partner when it comes to how you and your partner choose to live out the rest of your time in a certain state, especially if you have no plans to leave that state that you settle in. If you live in a state recognizing common law marriage, always sign a living together agreement. It is so important to protect yourselves, if you use the same last name or co-own a home.

It is so important to discuss any and all scenarios in which benefits of marriage would outweigh benefits of a common law marriage and vice versa before making the ultimate determination with your partner. It’s up to you and your partner to decide what scenarios you are satisfied with when it comes to being with or without certain benefits. If healthcare or immigration are issues, marriage may be the better fit. If you have an interest in protecting your finances, a prenuptial agreement before a marriage may be right for you. If protecting the legitimacy of your relationship in court in the future is a concern and you don’t want to risk settling in a state that could end up abolishing common law marriage (I’m looking at you, South Carolina), marriage might be the smarter choice for you. If contract work takes you to various parts of the country or out of the country (as common law may or may not exist depending on the country you reside in) for one or multiple years at a time, discussing when the right time to settle into a common law marriage is something to think about.

Every relationship is different and has its own sets of needs so there is no one size fits all answer here. I cannot tell you what is best for your relationship. It really comes down to the two of you sitting down to figure out the wisest path for your future. There are many factors to consider; finances, work, children, family, rented and/or owned property, healthcare, and so on. One great way to begin to figure out what’s best for you is couple’s therapy. If you’re able to afford therapy, consider talking through all of your decisions in therapy which will help you see what you are emotionally ready for as well. Because it’s not just a physical, tangible decision. This decision will affect you mentally and emotionally as well.

Here are some articles to read for you to see how common law marriages fared for other people. This is just a starting point for your research to help you look at many factors and determine what is best for you and your partner.

Must Read Articles For You and Your Partner:

NPR – “No, You’re Not In A Common-Law Marriage After 7 Years Together”

The Japan Times – “Worried about coronavirus, unmarried couples pursue legal protection”

Detroit Free Press – “These couples want the same right as married couples when crossing the border”

BBC News – “Cohabiting couples warned of ‘common law marriage’ myths”

AP News – “South Carolina Supreme Court abolishes common law marriage”

Bonus Link: Forbes – “How To Untangle Joint Credit Card Debt In Divorce”

Also read: Why People Cheat Instead of Walking Away

What have we learned here today? Before you go thinking that common law marriage is a myth, do some research on what your state recognizes and know the options that are available to you and your spouse. Also think about the time limit on these options. South Carolina tried for 20 years to get common law abolished before it finally was in 2019. Know which states are not actively fighting against the very foundation that you are trying to build with your partner before settling down anywhere. You won’t know what’s best for you and your partner until you seek out these answers and who knows, a common law marriage may be more up your alley than a traditional marriage. The good thing is, if you want to get legally married, you still can! No matter, these are the tools to get you started on your research. The rest is up to you two.

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