Talk:Common-law marriage in the United States

What is common-law marriage?

This article spent a great deal of text describing which state allow common-law marriage, which state don't. However, it does not define common-law marriage. So what is it?

Iowa

Should there be a section on the impact to same-sex couples of Iowa's legalization of same-sex marriage? How does this newly-recognized right interact with common-law marriage statues in Iowa? —Preceding unsigned comment added by Emathias (talk • contribs) 19:42, 12 August 2010 (UTC)

Texas

Is it worth noting that Texas accidentally banned all marriage?--70.103.90.123 (talk) 09:34, 5 January 2010 (UTC)

Question on Washington

I found this text here:

While common law marriage doesn't exist in Washington, if you live together with someone in a stable, "marital-like" relationship for a period of time, you may wind up having to split some of the assets you acquired during the time you were together. There is no exact formula for deciding what's a "marital-like" relationship, but courts consider:

• Whether you lived together continuously and for how long
• The purpose of the relationship
• Whether or not you pooled your resources and energy for joint projects
• The intent of each of you in the relationship

Once a court decides that you were indeed in a "marital-like" relationship, the court will look at the interest that each of you had in the property you both acquired while in the relationship and make a joint and equitable distribution of all the property. If you have children together, the court will decide on a parenting plan and award child support just as if you had been married.

This sounds like the concept of putative marriage which is similar but not identical. Ohwilleke (talk) 23:23, 25 April 2011 (UTC)

Is this accurate? If so I think it would be useful to mention here which states honor "marital-like" relationships. Dcoetzee 01:06, 24 February 2009 (UTC)

It reads to me that for all practical purposes that's a common law marriage. It may be not just for appearances to the public that they don't call it a marriage though. They're basically saying, "you can call it whatever you want, but your fortunes are being brought together". (This may be preferable to the State for tax purposes also, since it's not unheard of for people to not license their marriage for the purposes of tax evasion.) 68.49.138.170 (talk) 17:54, 21 March 2009 (UTC)

Common Law Marriage in Virginia

Virginia is listed as a state that "never permitted common-law marriages". Then why was I taught about common law marriages in my paralegal's course on marriages and divorces, not as a kind of marriage that would not be annulled if carried over from other states (as it is in most of the Union), but as a marriage that could be entered into in this state? I'm certain I'm not imagining this. 68.49.138.170 (talk) 18:27, 21 March 2009 (UTC)

Second paragraph of the "Availability by State" chapter

(State really should be capitalized as a proper noun, and part of a title! Although I'm less sure of "by". It's a preposition rather than an article of speech. Right?) Common law marriages may in theory be difficult to get out of. However, since a couple need not license their marriage with the state (not the proper noun version), nor even have it witnessed or notarized by anyone in particular, it can quickly become a case of his/her word against her's/his'. Inversely there's the potential for a team of conspirators to produce perjurous affidavits stating to have witnessed a man, or a woman, to have consented to, or declared to have entered into, a common law marriage, say for purposes of a shotgun wedding, or gold digging. 68.49.138.170 (talk) 18:27, 21 March 2009 (UTC)

Indiana

"A marriage is void if the marriage is a common law marriage that was entered into after January 1, 1958." Indiana Code IC 31-11-8-5

I have removed this from the "Requirements by state" section because it never should have been there in the first place, so this is just a note to preserve the reference URL. --Jonrock (talk) 19:51, 12 April 2010 (UTC)

Common Law Validity

It is my understanding that common law marriages are valid even if they aren't recognized. See http://www.originalintent.org/edu/marriage.php —Preceding unsigned comment added by 76.176.169.28 (talk) 02:51, 31 July 2010 (UTC)

The source cited is a hetrodox statement of American law. In other words, it does not reflect statutory or court created law. It is an ideological statement of what the law should be, rather than a statement of the law as it exists today. Ohwilleke (talk) 23:26, 25 April 2011 (UTC)

California

The article states that common law marriages have not been recognized in California since 1895, and in the following paragraph states that common law marriages were never recognized in California. Could someone clarify this please? Floribr1 (talk) 14:42, 9 August 2011 (UTC)

Inconsistent information re: New Mexico

The article lists New Mexico both among the states where common law marriage *is* recognized and the states where it is *no longer* recognized:

"Common-law marriage can still be contracted in eleven states (Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire (posthumously), New Mexico, Rhode Island, South Carolina, Texas, and Utah) and in the District of Columbia."

"Common-law marriages can no longer be contracted in the following states, as of the dates given: Alaska (1917), Arizona (1913), California (1895), Florida (1968), Georgia (1997), Hawaii (1920), Idaho (1996), Illinois (1905), Indiana (1958), Kentucky (1852), Maine (1652, when it became part of Massachusetts; then a state, 1820), Massachusetts (1646), Michigan (1957), Minnesota (1941), Mississippi (1956), Missouri (1921), Nebraska (1923), Nevada (1943), New Mexico (1860), New Jersey (1939), New York (1933, also 1902–1908), North Dakota (1890), Ohio (1991), Oklahoma (Nov. 2010), Pennsylvania (2005), South Dakota (1959), and Wisconsin (1917)."

142.167.247.6 (talk) 16:33, 14 December 2011 (UTC)

The "misinterpretation" of common-law marriage

I've commented on some seeming contradictions between this and a couple of other articles here. Input welcome on how best to reconcile these. 84.203.32.187 (talk) 02:38, 23 January 2014 (UTC)

Oklahoma abolition

I just injected what amounts to original research into the footnotes. Here's the relevant text from SB 1977, which in 2010 abolished common law marriage in Oklahoma. (Background: In both 1994 and 1998, the Oklahoma legislature passed laws which apparently some legislators thought would ban common law marriage. Some judges disagreed each time, and frankly, from what I can see of the laws in question, I think the legislators were smoking something - but I don't think I've seen all of the 1998 law, and I'm quite sure I haven't seen all of the 1994 one. Anyway, in 2010 they decided to be as emphatic as they possibly could, to shut the judges up.)

"On and after November 1, 2010, a common-law marriage in this state or any other state shall not be recognized as a valid form of marriage in Oklahoma; provided, however, any common-law marriage recognized as valid by a court of competent jurisdiction in this state or any other state prior to November 1, 2010, shall continue to be recognized as valid in this state."

There are two ways to read this. Read straight, it has the following consequences:

1) All common law marriages that happened to come to a court's attention before 11/1/2010 are recognised in Oklahoma.

2) No common law marriages that managed *not* to come to a court's attention before 11/1/2010 are recognised in Oklahoma, whether or not they involve Oklahoma residents.

This latter is not only punitive to ordinary Oklahoma citizens who never thought they needed court validation of their marriages but have the bad luck to die 11/2/2010, but also to similar citizens of Iowa. I'm imagining the catastrophe in probate court if such Iowans own Oklahoma property: Iowa says they were married, but Oklahoma insists they weren't. Full faith and credit legal action, here we come.

Alternatively, you can insert commas as follows:

"however, any common-law marriage*,* recognized as valid by a court of competent jurisdiction in this state or any other state*,* prior to November 1, 2010"

Then it has different consequences:

1) Oklahoma residents who believe any of the legal sites still claiming Oklahoma recognises common law marriages are out of luck.

2) Non-Oklahoma residents who common law marry perfectly legally in one of the remaining jurisdictions, in 2011 and later, are too.

So under this scenario, it'll probably take a few decades before that Iowa-Oklahoma probate court clash happens.

Anyway, in my many web searches related to common law marriage in Oklahoma, I found nobody at all pointing these things out. So I'm not only injecting original research, I'm doing it in hopes of getting those legislators to fix this mess, i.e. with a political purpose. Shame on me, but then, I'm not a Wikipedian...

Joe Bernstein joe@sfbooks.com not a registered Wikipedian; main author of the "history" section of "State income tax", which is more or less why I care about this.

128.95.223.129 (talk) 05:21, 13 February 2014 (UTC)

OK, so now I've uninjected that original research. Egg all over my face. I haven't found any record of the vote in the OK Senate - the bill definitely passed the Judiciary Committee - but SB 1977 did not become law, as evidenced both positively (the OK Tax Commission and Department of Corrections have both left unrevised pages that represent common law marriage as legal in OK) and negatively (there's nothing banning common law marriage in the OK Statutes).

I do not, however, have the equipment to say what common law marriage in OK currently requires. Two versions cut and pasted from what I hope are more authoritative sources than me:

The US Department of Labor summarises the situation as of April 2010 as follows (blithely ignorant of all previous alleged abolitions):

"Oklahoma

"Oklahoma recognizes common-law marriages established within its borders. See Standefer v. Standefer, 26 P.3d 104, 107 (Okla. 2001); Davis v. State, 70 (Okla. Crim. App. 2004). The elements necessary to establish a common-law marriage in Oklahoma are: (1) an actual and mutual agreement between the spouses to be husband and wife; (2) a permanent relationship as man and wife; (3) an exclusive relationship (which may be proved by cohabitation) as man and wife; and (4) the parties to the marriage must hold themselves out publicly as husband and wife. Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla. 1983); Estate of Phifer, 629 P.2d 808, 809 (Okla. App. Ct. 1981). Thus, a common-law marriage is established if competent parties enter the relationship by mutual agreement, exclusive of all others, and consummate the arrangement by cohabitation and open assumption of marital duties. Mueggenborg v. Walling, 836 P.2d 112, 113 (Okla. 1992). Open and notorious cohabitation is evidence of a marriage agreement, other elements being present, while lack of such open cohabitation may be evidence tending to discredit the alleged agreement, thus casting upon the alleging party a greater burden in the actual proof of the agreement. Mueggenborg, 836 P.2d at 113 n.2. The person seeking to establish the existence of a common-law marriage in Oklahoma has the burden to show its existence by clear and convincing evidence. Standefer, 26 P.3d at 107. However, the relationship may be proved by both direct and circumstantial evidence. Maxfield v. Maxfield, 258 P.2d 915, 921 (1953)." http://www.dol.gov/owcp/energy/regs/compliance/PolicyandProcedures/CommonLaw_Marriage.pdf

The Oklahoma Department of Corrections currently advises inmates as follows, in a document dated 2012:

"Common law marriage is defined as: “a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of a husband and wife, and assumption of marital duties and obligations.”" http://www.ok.gov/doc/documents/op090128.pdf

Anyway, I wanted to delete this section, but might as well leave up the evidence of my incompetence and make it do something useful instead.

Joe Bernstein joe@sfbooks.com not a registered Wikipedian

128.95.223.129 (talk) 23:30, 19 February 2014 (UTC)