Americans are steadily delaying the age of first marriage. From 1983 to 2023, the median age increased by about five years to 30.2 years for men and 28.4 years for women, according to the U.S. Census.
But as individuals increasingly choose to defer or skip entering into a formal marriage, it is important for partnered individuals to understand the legal ramifications of informal unions.
It is sometimes assumed that a couple can obtain the designation of a “common-law marriage” if they have cohabitated over a long period of time. But it is a much more complicated term that will vary widely from state to state. In fact, most states do not legally recognize common-law marriages at all.
READ:
What Is Family Law?What Is a Common-Law Marriage?
Legal marriage is primarily regulated by state laws, not federal laws. This means that each state will have a different definition. The National Conference of State Legislatures generally refers to it as “a legally recognized marriage between two people who have not purchased a marriage license or had their marriage solemnised by a ceremony.”
A common-law marriage does not necessitate a civil or religious event. Rather it recognizes two parties that cohabitate and consent to live like spouses.
The term has numerous origins, but in U.S. it was popularized during frontier times when it was much harder to obtain official marriage documentation. Instead, some states opted to consider a woman and man married if they lived together for a certain length of time and essentially acted as husband and wife.
Since then, the majority of states have taken action to remove common-law marriage as a legal status. Aside from a few states and the District of Columbia, it is not considered a valid form of marriage that carries any legal rights.
“The most common misconception is that simply living with someone for seven years, or some other arbitrary time frame, creates a common-law marriage,” says Lindsay Childs, a family law attorney at Vetrano/Vetrano & Feinman. “The creation of a common-law marriage requires more specific factual circumstances, such as exchanging present words of an intent to be married and then holding yourself out as husband and wife to others.”
What States Recognize Common-Law Marriages?
Very few states still recognize couples as common-law married. Those that do, in some form, include Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas and Utah, as well as the District of Columbia.
All states have different guidelines for the legal designation. For example, Colorado has relatively broad guidelines that include living together at the same permanent address and presenting themselves as spouses. This enables unwed Coloradans to file joint taxes and enjoy other benefits typically afforded to a married couple.
Meanwhile, in states such as New Hampshire, common-law marriages are more strict and very rarely recognized. Typically, the state will only recognize their validity when determining inheritance after one party passes away.
The good news is this: Though the majority of states will not contract common-law marriages within their state, they will typically recognize these unions if they are contracted by a different state. In California, for example, the law does not include common-law marriage. Still, it would recognize a common-law marriage if the couple previously obtained one in a state that does recognize it.
What Are the Benefits of a Common-Law Marriage?
Common-law marriage typically matters most upon a death or separation. If one partner dies, it will become important to know if the surviving partner is eligible for the same benefits as if the two were married. Similarly, if the couple separates, they may feel entitled to split assets the same way married couples do.
The stakes can be high for individuals in these situations who decide not to obtain a formal marriage license, explains Alphonse Provinziano, a family law specialist and senior trial attorney at Provinziano & Associates.
“Say you forego many years of employment to take care of someone, and then the relationship doesn’t work out for whatever reason,” Provinziano says. “Now you really don’t get any of those protections, you don’t get spousal support and you don’t get half of the property,”.
On the other hand, obtaining a common-law marriage from a condoning state can be hugely beneficial.
“The finding of a common-law marriage can have very significant consequences because if parties are found to have a common-law marriage, then depending on what state you live in, you could be granted with all of the rights and obligations of a spouse,” Childs says.
Related:
How to Get a DivorceWhat Are Alternatives to Common-Law Marriage?
Individuals wanting to delay or forgo traditional marriage still have options to obtain some of the same benefits. In particular, cohabitation agreements can help formalize certain rights and obligations between partners.
“We recommend that because it’s just like a prenup, (agreements reached) when everyone really is having positive feelings and they’re very happy,” Provinziano says. In particular, he notes, high-net-worth individuals should use the agreements to stipulate what should happen to assets if they separate.
Some states will also use other terms to describe rights of unwed partners. For example, California has what is known as palimony – a term that combines “pal” and “alimony” – to describe a judge’s award of financial support from one unwed partner to another after a breakup.
Similar to common-law marriage, however, this has to be proven to be more than a casual relationship.
“It’s like common-law marriage with a different name,” Provinziano says. “It says that you have a contractual relationship to someone that clearly you knew that you weren’t a spouse, but that you have an agreement that you were going to live together.”
