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Common Law Marriage or Just Living Together?

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By Stephanie Rabiner, Esq. on March 01, 2011 6:09 AM

We've all heard of common law marriage--where the state deems two people married despite their never having had a marriage ceremony or filed a marriage license. The truth is that only fifteen states and the District of Columbia recognize common law marriages, some of which only recognize marriages created before a certain date.

Common law marriage is not merely cohabitating while in a relationship. Every state has specific requirements that a couple must meet before they are considered to be in a common law marriage. The following are the most common requirements.

  • Capacity to marry. Both persons must be of age to marry, as well as mentally capable of consent.
  • Both parties must also consider themselves to be husband and wife.
  • The couple must live together. Depending on the state, this could mean permanently, substantially, or just half the time.
  • The couple must represent themselves to others as being married. This could be as simple as identifying themselves as married to neighbors, or filing joint tax returns.

Why is the distinction between common law marriage and cohabitation so important?

Rules about marital property can apply to people in a common law marriage, but don't to those who just live together. This can impact what happens to property and financial responsibilities when a relationship is over, as well as what occurs while the relationship is still intact.

So, if you think you're part of a common law marriage and you may not want the rights and burdens that normally come with marriage, it's time to see a family law expert about untangling your property. And if you're just living with your significant other, but want to be in a common law marriage, it's best you do the same.

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