Common law marriage is a concept that has been around since the 1800s. The idea allows couples to be legally married without the formality of a ceremony, witnesses, and a marriage license. Many people believe that a common law marriage is formed simply by living with your partner for a specific amount of time. On the contrary, for you to establish a common law marriage, you must live in one of the handful of states that recognizes it and meet several other requirements. The benefits of common law marriage may include inheritance rights, property division, and alimony upon the termination of the relationship. Currently, only Colorado, District of Columbia, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah recognize common law marriage. A few other states, including Georgia, Idaho, New Hampshire, Oklahoma, Ohio, and Pennsylvania may retroactively recognize a common law marriage if you and your spouse satisfied the requirements before the state banned it. If you live in a state that currently recognizes common law marriage, you’ll need to demonstrate the following before the state accepts your relationship:
• you must live together for a significant amount of time (no state defines the time limit)
• you and your partner live as and portray yourselves to your friends, family, and community as a married couple, typically meaning you share the same last name, refer to each other as “spouse,” “husband,” or “wife,” share bank accounts and real property, and/or file a joint tax return, and
• you both must have the capacity to marry (at least 18 years old, of sound mind, and not already married to someone else.) If you lived in a state that recognized common law marriage and relocated to one that doesn’t, the new state may recognize your relationship for inheritance and divorce purposes.
Is Common Law Marriage a Good Alternative to Legal Marriage?
No. It’s not. Some couples want to avoid a nasty divorce, so they set out to establish a common law marriage instead. However, if you live in a state that recognizes common law marriage, the only way to end the relationship is to ask the court for a divorce. You’ll still need to go through the formal process of property division and custody and support determinations, in addition to asking the court to terminate your relationship legally. Divorcing from a common law marriage may first require a trial to prove to the court that you were in a legally enforceable marriage, which could take more time and money than a divorce from a traditional marriage. Some couples want a common law marriage for inheritance purposes, but the process isn’t any easier for common law marriages than traditional marriage, in fact, it’s more complicated. If your common law spouse dies without a will, your spouse’s family may petition the court for the property because the two of you weren’t legally married. Before you can proceed and collect your rights as a spouse, you’ll need to prove to the court that your common law marriage is legal. If you fail to meet even one of your state’s common law marriage requirements, you risk losing your inheritance. Common law marriages also prove complicated if you’d like to sue on your spouse’s behalf. For example, if your spouse dies in a work accident, you can’t sue the employer for neglect unless you can demonstrate that you and your spouse have a legally enforceable relationship. The court would require you first to prove that you meet the requirements for a common law marriage before you can proceed with the suit for neglect. Had you and your spouse formed a traditional marriage, the court would allow you to sue immediately on behalf of your spouse. Utah does recognize Common Law Marriage but it is under a set of specific circumstances that is hard to prove. When it comes to common law marriage, the process of getting a divorce isn’t too different from a regular divorce; there’s no such thing as “common law divorce.” In fact, the main difference in the divorce process is that you first have to prove that a common law marriage existed. There are a few ways to do this (you need all these elements to show common law marriage existed):
• Are of legal age and capable of consent;
• Are legally capable of entering a solemnized marriage under the provisions of this chapter;
• Have cohabitated;
• Mutually assume marital rights, duties and obligations; and
• Have held themselves out as and have acquired a uniform and general reputation as husband and
• The determination or establishment of a marriage shall occur during the relationship described above within one year following the termination of that relationship
How to Tell Whether You Have a Common Law Marriage
There are no absolute rules or guidelines; whether or not a common law marriage exists depends on the facts of each situation. However, a common law marriage can occur only when all of the following occur
• You are a heterosexual couples who lives together in a state that recognizes common law marriages
• You have lived together for a significant amount of time (not defined in any state). Despite much belief to the contrary, the length of time you live together does not by itself determine whether a common law marriage exists. No state law or court decision says seven years or ten years of cohabitation is all that is needed for a common law marriage. It’s only one factor the court may consider.
• You hold yourselves out to the community (your neighbors, friends, and coworkers) as a married couple—typically, this means using the same last name, referring to the other as “my husband” or “my wife,” and filing a joint tax return.
Courts most often apply the rules of common law marriage in situations where one partner dies without a will and the other claims there was a common law marriage so as to inherit property under intestate succession laws. These laws automatically give a share of property to a spouse but don’t recognize an unmarried partner. If your state recognizes common law marriages where both partners are still living and your relationship meets the requirements, you may need to end your relationship by divorcing, just as you would if you had gotten married with a license and ceremony. Check with a lawyer who knows that law in your state to get this all sorted out.
Changing Your Name if Your Marriage Is Common Law
Anyone can do a name change you don’t need to be married. In theory, most states allow you to legally change your name by usage only — meaning that you simply start using your new name without any court action, and at no cost. However, practically speaking, because you don’t have a marriage certificate, you will need an official court order changing your name before you’ll get government agencies and many private companies, such as banks and title companies, to accept your new name. Common law marriages are recognized in a small number of states by a notarized affidavit or domestic partner agreement. A common law marriage is one without a marriage license. If you are in a state that recognizes common law marriage, you can show proof of your common-law relationship by providing an affidavit from you and your partner regarding your history together. Some states, as well as the Social Security Administration, may also require affidavits from two people who are aware of your common-law relationship. These documents must be notarized and filed with a county clerk. Depending on the jurisdiction, a certificate may be issued or the affidavit itself may be recognized as valid proof of marriage.
Common Law Marriage Requirements In Utah
There are certain statements that affidavits of common law marriage are required to include:
• The state where the two of you agreed to be husband and wife
• The date when you made this decision
• Any previous marriage relationships, both licensed and under common law. If there are any such marriages, you will need to provide wedding dates, and how the relationships ended, with documents supporting the termination.
• That you are 18 years old or older, and any other competence requirements for the state
Couples that want a traditional marriage must apply for a license and complete a wedding ceremony, which may be officiated by a judge, preacher, or other qualified person. After the ceremony, the spouses will receive a marriage certificate to keep for their records. Once the couple takes these steps, they are legally married and entitled to marital benefits from the state and federal government, including marital tax deductions, Social Security spousal benefits, inheritance rights, and the right to apply for immigration status for a foreign-born spouse. In Utah, couples who have lived together and treated each other as spouses can ask the court to recognize their past relationship as a marriage. To do this, a couple needs to file a formal, written request called a “petition to recognize a relationship as a marriage” at the local court. This petition must be filed either during the relationship or within one year after it ends. If a judge grants the request, the couple will be legally married. Unlike traditional marriage, which becomes legal as of the date of the ceremony, a couple petitioning the court to recognize a past marital relationship will have their marriage backdated to the time their relationship began. Before completing all the steps required preparing and filing a petition to recognize a relationship as a marriage, couples should understand that this process has the same effect as getting married. Unless the couple (or one of the partners) must have the past relationship recognized as a legal marriage for a specific purpose, such as divorce, inheritance, or spousal support, it may be cheaper and faster to simply get married.
How Do I Establish My Marriage?
Either partner can ask a judge to recognize the past relationship as a marriage. The partner who files the paperwork will need to present evidence and witnesses to support the request. To prove to the court that a marriage existed, the filing partner must show:
• both partners are of legal age and can give consent
• both partners are legally capable of entering a marriage
• the couple has lived together
• the partners have treated each other as a spouse and treated their relationship as a marriage, and
• both partners presented themselves as a married couple to the public, in a way that made others believe they were married.
If the court finds that the evidence is sufficient support the request, a judge will approve it and declare the couple legally married. If the couple files the petition together, they should file it with their local county court. If the partner files the petition after the relationship has ended, it can be filed along with a divorce petition. Both partners in the relationship must agree that their union is a marriage, which is known as consent. The person who files the petition is responsible for proving consent to the court and can do so in a variety of ways. For example, the person filing the petition can provide the court with:
• a written agreement between the parties
• testimony from others who were present at the time the parties made the agreement that they were in a marriage
• proof of joint bank and credit accounts
• evidence of a purchase and ownership of joint property
• joint tax returns, or
• other documents that support or declare the relationship, such as a will, deed, or power of attorney.
What are the Benefits to Having the Relationship Recognized?
Legally married couples enjoy a variety of benefits including tax breaks, inheritance and survivor rights, spousal Social Security benefits, and spousal privilege rights. Either party in an unmarried couple can petition the court for recognition, and often this occurs at the end of the relationship. Once a court declares that a marriage existed, a spouse will have access not only to all marital benefits and rights, but also to divorce-related legal protections if the couple decides to end their relationship—these include:
• fair property settlements
• alimony (if appropriate)
• a share of the partner’s pension and/or retirement benefits
• attorney fee contributions from the other spouse, and
• all the other rights and protections afforded to divorcing spouses.
It can also be helpful to have the relationship marked as a legal marriage when one partner passes away and the living partner may inherit property. If one partner dies without a will, that person’s legal spouse will have automatic inheritance rights, while a non-legal partner will not.
Why Common Law Marriage is Complicated in Utah
Countless couples throughout Utah live together for years in long-term relationships without exchanging wedding vows. In addition to living at the same property, many couples in common law marriages also have children together or from previous relationships. But what happens when a common law marriage comes to an end? Fortunately, it is not much different from conventional divorce. First, it is important to remember there is no such term as “ common law divorce”. However, there is one major fundamental difference. Couples must prove they are in a common law marriage.
How Common Law Marriage in Utah is Determined
In any long-term relationship, couples will share many things. People involved in common law marriages have the same issues as conventional marriage. The division of property, child custody and visitation are some of the most important.
To prove a common law marriage existed, couples must prove the following:
• Both parties must be of legal age of consent
• Both parties must live together
• Both parties must be capable of entering a legal marriage under the provisions of Utah family law
• Both parties have mutually assumed marital obligations, rights, and duties
• Both parties have established a reputation as husband and wife
Requirements for a Common Law Marriage
The requirements for common law marriage vary between the states, but all states have these criteria in common: you both must have the intent to be married and the legal capability to marry. Most states, but not all, also allow require you to live together.
Here are the basic requirements for the creation of a common law marriage; however, your specific state may have additional requirements.
• You and your partner must have the capability (that is, be old enough and have the mental capacity) to enter a contract for a valid marriage with each other.
• You must both live in a state that recognizes common law marriages when the marriage contract is entered into.
• You must both have the intent to marry one another.
• You must both consider yourselves husband and wife, and
• You must both agree to be husband and wife from that time on.
Common Law Marriage Lawyer In Utah
When you need legal help with a common law marriage, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506