The Common Law Marriage Myth

Contrary to popular belief, there is no such thing as common law marriage in most of the United States. And, while common law marriages are recognized in 15 states and the District of Columbia, it takes something a lot more deliberate than simply shacking up together to achieve such a result.

Here's the good news: You can shack up with your live-in lover for years on end, and you won't wake up one morning and find out that you've magically (and unknowingly), become common law husband and wife.

The idea of common law marriage arose during medieval times as a way for rural couples to become married when a justice of the peace couldn't travel to where they lived. Today, the need for common law marriage doesn't exist, and most states don't recognize such unions.

In those states that do recognize common law marriages, a couple (man and woman) must demonstrate the intent to be married in the eyes of the law. They must hold themselves out to the public as husband and wife. They must also act as a married couple would by doing such things as having a joint checking account and filing joint income tax returns. By carrying on as a married couple over time, an unmarried couple can reap the benefits of marriage without the formal piece of paper. Remember, the agreement to be married is only valid if you live in a state that recognizes common law marriage.

Here's the bad news: If you do enter into a common law marriage, you'll not only obtain the benefits of marriage, you'll also get the obligations and the headaches. And should the relationship end, you'll have to get an actual divorce. Frankly, if you intend to enter into a common law marriage, you may just as well enter into the real thing. It will probably be a lot less complicated.

Unfortunately, even common-law marriage states do not recognize the right of a same-sex couple to form a marital union of any kind, common law or otherwise.

So, what do attorneys recommend? If you do not live in a state that recognizes common law marriage, or if you are a same-sex couple, and you want to reap the benefits of marriage without the formality, the solution is really quite simple. Enter into a contractual relationship with your partner. You can agree by contract to any rights or obligations that would be automatically conferred on you by law as a married couple.

If you do live in a state that recognizes common law marriage, be sure you get what you bargained for. At the very least, you and your partner should sign a statement regarding whether or not your intention is to establish a common law marriage. Otherwise, the man you've lived with for 10 years and jokingly called your "husband" could very well stake a claim to your retirement account.