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Edra J. Pollin

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When Does Cohabitation Become A Common Law Marriage?

Posted: 01/05/12 12:20 PM ET

When live-in lovers decide to call it quits, the parties' relationship is not always severed by a simple division of their furniture. If romantic partners have been cohabitating for a lengthy period of time and have commingled their assets and debts, their break-up in any jurisdiction may quickly give rise to disputes about the division of home equity, bank accounts and/or the payment of credit cards and other debts. However, when cohabitating parties end their relationship in a state which recognizes common law marriage, broken hearts are sometimes followed by a legal dispute which goes to the very heart of the matter. In divorce court, the parties' case begins with their conflicting responses to the critical question, "Are you married?"

Common law marriage is fully recognized in nine states and the District of Columbia. In seven additional states, common law marriage is only recognized for limited purposes or if the marriage arose prior to a certain date. Although the specific requirements of common law marriage vary between differing jurisdictions, a common law marriage is generally established when the parties: a) live together for an extended period of time; b) hold themselves out in a public manner as a married couple; and c) demonstrate an intention to be married. Accordingly, when one party asserts the existence of a common law marriage, he or she has the burden of proving an affirmative response to most of the following questions: 1) Did the parties' file joint income tax returns? 2) Did the parties openly hold themselves out to be husband and wife in their interactions with neighbors and friends? 3) Did the parties maintain joint banking and/or credit card accounts or purchase property in joint names? 4) Did the woman begin using the man's last name? (These days, this question is probably of lesser importance). 5) Did either party name the other as their spouse on their health insurance, life insurance policy or pension?

The concept of common law marriage is somewhat analogous to the old adage that, "If it walks and talks like a duck..." If you continue to act like you're married in your dealings with friends, neighbors and the IRS, don't act surprised if a judge finds that you actually are.

The significance of common law marriage can hardly be overstated. For much the same reason that same-sex couples have fought for the right to marry, individuals who assert a common law marriage recognize that spouses enjoy considerably greater benefits than parties who have simply cohabitated with one another. Most often, common law marriage is asserted in a divorce case wherein one party is seeking alimony and a division of property which they could not otherwise obtain without the claim of a legal marriage. On occasion, common law marriage is asserted by an ex-husband who is seeking an end to his alimony payments on the basis that his ex-wife's cohabitation is actually a common law remarriage to another man. In the criminal courts, common law marriage may be asserted by a defendant who seeks to quash their partner's testimony by invoking a claim of spousal privilege. In civil or probate court, the claim of common law marriage is typically made by a party who is seeking either damages in a wrongful death suit or designation as an heir at law when the cohabitating partner, and alleged spouse, is now deceased.

At a time when cohabitation in the United States has become more prevalent than ever, romantic roommates who are trying to mix and match their sofas and coffee tables should take a moment to learn their state's law regarding common law marriage. If you're cohabitating in a common law marriage state and you have no present intent to be married, be mindful of your state's legal requirements for this concept so you can conduct your personal and business affairs accordingly. Be aware that common law marriage is not easily proved but even if you "win" in divorce court with a judicial determination that no marriage was created, you already lost by engaging in a course of conduct which allowed two attorneys to litigate this issue in the first place.

As a matter of law, once a common law marriage has been established, there is no difference whatsoever between a common law marriage and a ceremonial one. This principle makes sense to family law attorneys, but how many brides would trade with the common law wife who missed out on the bridal shower, the dress and the diamond engagement ring?