Common-law marriage in the United States

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Common-law marriage in the United States can still be contracted in nine states (Alabama, Colorado, Pennsylvania, Rhode Island, South Carolina, Iowa, Montana, Utah, and Texas) and the District of Columbia. New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order.[1] Common-law marriage can no longer be contracted in 27 states, and was never permitted in 13 states. The requirements for a common-law marriage to be validly contracted differ from state to state. Nevertheless, all states—including those that have abolished the contract of common-law marriage within their boundaries—recognize common-law marriages lawfully contracted in jurisdictions that permit it.[citation needed] Some states that do not recognize common-law marriage also afford legal rights to parties to a putative marriage (i.e. in circumstances when someone who was not actually married, e.g. due to a failure to obtain or complete a valid marriage license from the proper jurisdiction, believed in good faith that he or she was married) that arise before a marriage's invalidity is discovered.

The principle of common-law marriage was affirmed by the United States Supreme Court in Meister v. Moore (96 U.S. 76 (1877)), which ruled that Michigan had not abolished common-law marriage merely by producing a statute establishing rules for the solemnization of marriages.[2]

General principles[edit]

The status of common-law marriage in the United States varies by state. In Meister v. Moore, 96 U.S. 76 (1877), the United States Supreme Court, relying on Hutchins v. Kimmell, 31 Mich. 126 (1875) ruled that Michigan had not abolished common-law marriage merely by enacting a statute which established rules for the solemnization of marriages, because it did not require marriages to be solemnized: it required only that, if a marriage was solemnized, it could be solemnized only as provided by law. Otherwise, the Court found that, as the right to marry existed at common law, the right of marriage according to the tradition recognized at common law would remain valid until state law affirmatively changed it. The Court did not find it necessary that a state legislature pass legislation specifically outlawing the common-law contract of marriage, but held that it was sufficient for a state's general marriage statutes to clearly indicate no marriage would be valid unless the statutory requirements for solemnization of marriage were followed.

Income Tax Purposes and other Federal Provisions[edit]

A common-law marriage is recognized for federal tax purposes if it is recognized by the state or jurisdiction where the taxpayers currently live, or in the state where the common-law marriage began. If the marriage is recognized under the law and customs of the state or jurisdiction in which the marriage takes place (even in a foreign country), the marriage is valid for tax purposes (Rev. Rul. 58-66). Practitioners should be alert to the specific state or jurisdiction requirements in order for their clients who are contemplating filing joint returns satisfy the requirements of the state or jurisdiction to be be considered common-law married.

In February 2015, the United States Department of Labor issued its final rule amending the definition of "spouse" under the Family and Medical Leave Act of 1993 "FMLA" in response to the United States v. Windsor decision recognizing same-sex marriage. The new DOL rule became effective March 27, 2015. [3] The revised definition of "spouse" extends FMLA leave rights and job protections to eligible employees in a same-sex marriage or a common-law marriage entered into in a state or jurisdiction where those statuses are legally recognized, regardless of the state in which the employee currently works or resides. [4] Accordingly, even if an employer has employees working where same-sex or common-law marriage is not recognized, those employees’ spouses would trigger FMLA coverage if an employee was married in one of the many states that recognize same-sex marriage or common-law marriage. [5]

State law issues[edit]

Common-law marriage can still be contracted in nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah and Texas) and the District of Columbia. New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order.[1]

Note there is no such thing as "common-law divorce" in the United States — that is, a married couple cannot terminate a common-law marriage as easily as they got into one. Only the contract of the marriage is irregular; everything else about the marriage is the same as a regularly licensed and solemnized marriage. Divorce or dissolution of marriage requires filing a petition for divorce or dissolution in the appropriate court in their state.[6]

The situation in Pennsylvania became unclear in 2003 when an intermediate appellate court purported to abolish common-law marriage[7] even though the state Supreme Court had recognized (albeit somewhat reluctantly) the validity of common-law marriages only five years before.[8] The Pennsylvania legislature resolved most of the uncertainty by abolishing common-law marriages entered into after January 1, 2005.[9] However, it is still not certain whether Pennsylvania courts will recognize common-law marriages entered into after the date of the Stamos decision and before the effective date of the statute (i.e., after September 17, 2003, and on or before January 1, 2005), because the other intermediate appellate court has suggested that it might not follow the Stamos decision.[10]

The situation in Oklahoma has been unclear since the mid-1990s, with legal scholars reporting each of 1994, 1998, 2005, and 2010 as the year common-law marriage was abolished in the state. However, as of February 19, 2014, several Oklahoma executive agencies continue to represent common-law marriage as legal there,[11] and no reference to the ban appears in the relevant statutes.[12]

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 Jersey (1939), New Mexico (1860),[13] New York (1933,[14] also 1902[15]–1908), North Dakota (1890), Ohio (1991), Pennsylvania (2005), South Dakota (1959), and Wisconsin (1917).

The following states never permitted common-law marriages: Arkansas, Connecticut, Delaware, Louisiana, Maryland, North Carolina, Oregon, Tennessee, Vermont, Virginia, Washington, West Virginia, and Wyoming. Note that common-law marriage was never recognized in Louisiana, which is a French civil or code law jurisdiction, not an English common law jurisdiction. As such, it is a former Council of Trent jurisdiction.

Nevertheless, all states — including those that have abolished the contract of common-law marriage within their boundaries — recognize common-law marriages lawfully contracted in those jurisdictions that permit it. This is because all states provide that validity of foreign marriage is determined per lex loci celebrationis — that is, "by law of the place of celebration." In addition, the full faith a credit clause of the U.S. Constitution, discussed below, requires all U.S. states to recognize the validity of official acts of other U.S. states. Thus, a marriage validly contracted in Ohio, including common-law marriages entered into before that state abolished new common-law marriages in 1991, is valid in Indiana, even though the common-law marriage could not have been legally contracted in Indiana, because Ohio law is the basis of its validity. However, by the same principle, a marriage that was not lawfully contracted in Ohio would not be valid in Indiana even if it could have been lawfully contracted there.

Rulings on the validity of a particular common-law marriage frequently refrain from identifying a specific date of marriage when this is not necessary, because often, there is no one event or marriage ceremony that establishes this date. Even when a relationship begins in a state that does not recognize common-law marriage, if the couple relocates to a state that recognizes common-law marriage, a common-law marriage between the parties is often recognized if the couple's relationship continues in the new state. It is not uncommon for someone to claim to be a spouse based upon time the couple spent together in a common-law marriage state even after the couple leaves that state. The case law does not definitively establish whether a couple who are briefly present in a common-law marriage state, and who otherwise are eligible to be considered common-law married, but who do not establish domicile in that state, will be recognized as common-law married in a state that does not itself have common-law marriage.

Additionally, some courts have held that all marriages performed within the U.S. must be valid in all states under the Full Faith and Credit Clause of the U.S. Constitution.[16] However, none of the cases to date has actually used the Clause to validate a sister-state marriage, and there is currently no known appellate case on the issue, working its way through U.S. courts, that is likely to reach the U.S. Supreme Court — whose decision would apply nationally, not just locally or within particular state or a federal circuit.

Legislation[edit]

The requirements for a common-law marriage to be validly contracted differ in the eleven U.S. jurisdictions which still permit them. The jurisdictions which still permit common-law marriages are the states of Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Rhode Island, South Carolina, Texas, and Utah, and the District of Columbia.

Alabama[edit]

A valid common-law marriage exists when there is capacity to enter into a marriage, the man and woman must be at least 16 with legal parental consent and present agreement or consent to be husband and wife, public recognition of the existence of the marriage after 265 days, and consummation.[17]

Colorado[edit]

The elements of a common-law marriage are, with respect to both spouses: (1) holding themselves out as husband and wife; (2) consenting to the marriage; (3) cohabitation; and (4) having the reputation in the community as being married.[18] Different sources disagree regarding the requirement of cohabitation and some indicate that consummation (i.e. post-marital sexual intercourse) is also an element of common-law marriage. Colorado, by statute, no longer recognizes common-law marriages entered by minors in Colorado, and also does not recognize foreign common-law marriages entered into by minors, even if that marriage would have been valid where entered into under local law. See Section 14-2-109.5, Colorado Revised Statutes. The constitutionality of this limitation as applied to foreign marriages has not been tested in litigation.[19]

Colorado, Montana, and Texas are the only U.S. states to recognize both putative marriage and common-law marriage.[20][21]

District of Columbia[edit]

According to the District of Columbia Department of Human Services, a common-law marriage is "A marriage that is legally recognized even though there has been no ceremony and there is no certification of marriage. A common-law marriage exists if the two persons are legally free to marry, if it is the intent of the two persons to establish a marriage, and if the two are known to the community as husband and wife."[22]

Common-law marriages have been recognized in the District of Columbia since 1931.[23][24] Holding common-law marriages legal, District Court of Appeals Justice D. Laurence Groner said,

"We think it cannot now be controverted that an agreement between a man and woman to be husband and wife, consummated by cohabitation as husband and wife, constitutes a valid marriage unless there be in existence in the State in which the agreement is made, a statute declaring the marriage to be invalid unless solemnized in a prescribed manner. We think it equally true that the rule now generally recognized is that statutes requiring a marriage to be preceded by a license or to be solemnized by a religious ceremony without words of nullity as to marriages contracted otherwise are directory merely and failure to procure the license or to go through a religious ceremony does not invalidate the marriage. ... There is nothing in the statute which declares that a marriage shall not be valid unless solemnized in the prescribed manner, nor does it declare any particular thing requisite to the validity of the marriage. The act confines itself wholly with providing the mode of solemnizing the marriage and to the persons authorized to perform the ceremony. Indeed, the statue itself declares the purpose underlying the requirements to be secure registration and evidence of the marriage rather than to deny validity to marriages not performed according to its terms."[24]

Iowa[edit]

The three elements of a common-law marriage are: (1) the present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife.[25] The public declaration or holding out to the public is considered to be the acid test of a common-law marriage.[26]

Adm. Rule 701—73.25 (425) of the Iowa Administrative Code, titled Common Law Marriage, states:

A common law marriage is a social relationship that meets all the necessary requisites of a marriage except that it was not solemnized, performed or witnessed by an official authorized by law to perform marriages. The necessary elements of a common law marriage are: (a) a present intent of both parties freely given to become married, (b) a public declaration by the parties or a holding out to the public that they are husband and wife, (c) continuous cohabitation together as husband and wife (this means consummation of the marriage), and (d) both parties must be capable of entering into the marriage relationship. No special time limit is necessary to establish a common law marriage.

Edit: 701—73.26 Rescinded, effective October 2, 1985.

[27]

This rule is intended to implement Iowa Code section 425.17.

Kansas[edit]

Under Kansas Statute 23-2502, both parties to a common-law marriage must be 18 years old. The three requirements that must coexist to establish a common-law marriage in Kansas are: (1) capacity to marry; (2) a present marriage agreement; and (3) a holding out of each other as husband and wife to the public.[28]

Montana[edit]

A common-law marriage is established when a couple: "(1) is competent to enter into a marriage, (2) mutually consents and agrees to a common-law marriage, and (3) cohabits and is reputed in the community to be husband and wife."[29][30]

New Hampshire[edit]

New Hampshire recognizes common-law marriage for purposes of probate only. In New Hampshire "[P]ersons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married." Thus, the state posthumously recognizes common-law marriages to ensure that a surviving spouse inherits without any difficulty.[31]

Rhode Island[edit]

The criteria for a common-law marriage are: (1) the parties seriously intended to enter into the husband-wife relationship; (2) the parties’ conduct is of such a character as to lead to a belief in the community that they were married.[32]

South Carolina[edit]

The criteria for a common-law marriage are: (1) when two parties have a present intent (usually, but not necessarily, evidenced by a public and unequivocal declaration) to enter into a marriage contract; and (2) "a mutual agreement between the parties to assume toward each other the relation of husband and wife."[33] Common law marriages can dissolve in legal divorce and alimony.

Texas[edit]

The Texas Family Code, Sections 2.401 through 2.405,[34] define how a common-law marriage (which is known as both "marriage without formalities" and "informal marriage" in the text) can be established in one of two ways. Both parties must be at least age 18 to enter into a common-law marriage.

First, a couple can file a legal "Declaration of Informal Marriage", which is a legally binding document. The form must be completed by both marriage partners and sworn or affirmed in presence of the County Clerk. The Declaration is formally recorded as part of the Official County Records by Volume and Page number, and is then forwarded by the County Clerk to the Texas Bureau of Vital Statistics, where it is again legally recorded as formal evidence of marriage. This is the same procedure that is used when a marriage license is issued and filed; the term "Informal" refers only to the fact that no formal wedding ceremony (whether civil or religious) was conducted.

Second, a couple can meet a three-prong test, showing evidence of all of the following:

  1. first, an agreement to be married;
  2. after such agreement, cohabitation within the State of Texas; and
  3. after such agreement, representation to others (within the State of Texas) that the parties are married.

Regarding the second prong, in the actual text of the Texas Family Code, there is no specification on the length of time that a couple must cohabitate to meet this requirement. As such, an informal marriage can occur under Texas law if the couple lives together for as little as one day, if the other requirements (an agreement to be married and holding out as married to the public) can be shown.

Likewise, a couple can cohabit for 50 years, but if they never have an agreement to be married, or hold themselves out to the public as married, their 50-year cohabitation will not make them informally married under Texas law.

Dissolution of this type marriage requires formal Annulment or Divorce Proceedings, the same as with the other more recognized forms of 'ceremonial' marriages.[35] However, if a couple does not commence a proceeding to prove their relationship was a marriage within two years of the end of their cohabitation and relationship, there is a legal presumption that they were never informally married, but this presumption is rebuttable.

Utah[edit]

Utah recognizes common-law marriages only if they have been validated by a court or administrative order. For a common-law marriage to be legal and valid, "a court or administrative order must establish that" the parties: (1) "are of legal age and capable of giving consent"; (2) "are legally capable of entering a solemnized marriage under the provisions of Title 30, Chap. 1 of the Utah Code; (3) "have cohabited"; (4) "mutually assume marital rights, duties, and obligations"; and (5) "hold themselves out as and have acquired a uniform and general reputation as husband and wife" [36] In Utah, the fact that two parties are legally incapable of entering into a common-law marriage, because they are already married, does not preclude criminal liability for bigamy or polygamy.

Other[edit]

Some states that formerly provided for common-law marriage have abolished it. Common-law marriages can no longer be contracted in those states, but they continue to recognize common-law marriages that were contracted there before the date of abolition, or that were validly contracted in compliance with the requirements of another state or jurisdiction that recognizes common-law marriage. Georgia recognizes common-law marriages created there before January 1, 1997; Idaho - created there before January 1, 1996; Ohio - created there before October 10, 1991; Pennsylvania - created there before January 1, 2005.[37] If common-law marriage is illegal in Oklahoma, which is not the view of several executive agencies,[11] the law banning it probably makes a similar distinction.[38] All earlier abolitions of common-law marriage since World War II also recognize marriages contracted in those states before their date as well, although these recognitions are no longer mentioned much: Mississippi - created there before April 6, 1956; Michigan - created there before January 1, 1957; Indiana - created there before January 2, 1958; South Dakota - created there before July 1, 1959; and Florida - created there before January 1, 1968.

Notes and references[edit]

  1. ^ a b "Marriage laws". Law.cornell.edu. Retrieved 16 December 2014. 
  2. ^ "Meister v. Moore, 96 U.S. 76 (1877)". 
  3. ^ Forman, Shira (27 February 2015). "DOL Issues Final Rule Amending FMLA Definition of “Spouse” to Include Same-Sex Marriages". Sheppard Mullin Richter & Hampton LLP. Retrieved 28 February 2015. 
  4. ^ Trotier, Geoffrey S. (24 February 2015). "FMLA "Spouse" Definition Now Includes Same-Sex Spouses and Common-Law Spouses". The National Law Review (von Briesen & Roper, s.c). Retrieved 28 February 2015. 
  5. ^ Gozdecki, Jeanine M. (25 February 2015). "FMLA Final Rule: “Spouse” Means Same-Sex Spouse (Even in Alabama)". The National Law Review (Barnes & Thornburg LLP). Retrieved 28 February 2015. 
  6. ^ The first such documented divorce occurred in 1887, when Frank J. Bowman of St. Louis sued for divorce from his common-law wife, Ida M. Bowman. The court granted the divorce along with alimony to Ms. Bowman of fifteen dollars per week."A Common Law Marriage Divorce". The Washington Post. December 15, 1887. p. 5. 
  7. ^ PNC Bank Corporation v. Workers' Compensation Appeal Board (Stamos), 831 A.2d 1269 (Pa. Cmwlth. 2003)
  8. ^ [1] Archived March 7, 2008 at the Wayback Machine
  9. ^ "Act 144 of 2004, amending 23 Pa.C.S. Section 1103" (PDF). Legis.state.pa.us. Retrieved 16 December 2014. 
  10. ^ Compare Bell v. Ferraro, 2004 PA Super 144, 849 A.2d 1233 (4/28/2004), with Stackhouse v. Stackhouse, 2004 PA Super 427, 862 A.2d 102 (11/10/2004).
  11. ^ a b For example, the Department of Corrections and the Tax Commission
  12. ^ "OCIS Document Index". Oscn.net. Retrieved 16 December 2014. 
  13. ^ New Mexico may never have had common-law marriage. In re: Gabaldon's Estate, 1934-NMSC-053, 38 N.M. 392, 34 P.2d 672 (New Mexico Supreme Court, 1934)
  14. ^ "New York Bill Denies Common-Law Marriage". The Washington Post. May 3, 1933. p. 4. 
  15. ^ "A Blunder in Law-making". The Washington Post. January 17, 1902. p. 6. 
  16. ^ See e.g. Thomas v. Sullivan, 922 F.2d 132, 134 (2d Cir. 1990
  17. ^ Waller v. Waller, 567 So.2d 869 (Ala.Civ.App. 1990). See also, Hudson v. Hudson, 404 So.2d 82 (Ala.Civ.App. 1981). (Alabama Attorney General - FAQ: Marriage/Divorce).
  18. ^ "Common Law Marriage". Colorado Department of Law. 2008. Retrieved 24 July 2009. 
  19. ^ Graham, Carl O. "Common Law Marriage". Colorado Divorce & Family Law Guide. Black & Graham. Retrieved 24 July 2009. 
  20. ^ [2] Archived November 27, 2010 at the Wayback Machine
  21. ^ TEX. FAM. CODE s. 2.401; Davis v. Davis, 521 S.W.2d 603 (Tex. 1975)
  22. ^ "Economic Security Administration Policy Manual: Appendix B - Glossary of Terms". District of Columbia Department of Human Services. Retrieved December 14, 2014. 
  23. ^ Hoage v. Murch Bros. Const. Co., 60 App.D.C. 218, 50 F.2d 983 (1931)
  24. ^ a b "O.K.'s Common Law Marriages Here: Court of Appeals Declares Absence of Specific Ban Validates Union". Washington Evening Star. June 1, 1931. p. 1-2. We think it cannot now be controverted that an agreement between a man and woman to be husband and wife, consummated by cohabitation as husband and wife, constitutes a valid marriage unless there be in existence in the State in which the agreement is made, a statute declaring the marriage to be invalid unless solemnized in a prescribed manner. We think it equally true that the rule now generally recognized is that statutes requiring a marriage to be preceded by a license or to be solemnized by a religious ceremony without words of nullity as to marriages contracted otherwise are directory merely and failure to procure the license or to go through a religious ceremony does not invalidate the marriage. ... There is nothing in the statute which declares that a marriage shall not be valid unless solemnized in the prescribed manner, nor does it declare any particular thing requisite to the validity of the marriage. The act confines itself wholly with providing the mode of solemnizing the marriage and to the persons authorized to perform the ceremony. Indeed, the statue itself declares the purpose underlying the requirements to be secure registration and evidence of the marriage rather than to deny validity to marriages not performed according to its terms. 
  25. ^ [3][dead link]
  26. ^ [4][dead link]
  27. ^ "Common law marriage.". Search.legis.state.ia.us. Retrieved 16 December 2014. 
  28. ^ "No. 82,974 : IN THE COURT OF APPEALS OF THE STATE OF KANSAS : In the Matter of the Petition of LOLA PACE For a Writ of Habeas Corpus". Kscourts.org. Retrieved 16 December 2014. 
  29. ^ [5][dead link]
  30. ^ [6] Archived December 14, 2007 at the Wayback Machine
  31. ^ "TITLE XLIII DOMESTIC RELATIONS : CHAPTER 457 - MARRIAGES". Gencourt.state.nh.us. Retrieved 16 December 2014.  line feed character in |title= at position 12 (help)
  32. ^ "DeMelo v. Zompa, 844 A.2d 174, 177 (R.I. 2004)" (PDF). Courts.state.ri.us. Retrieved 16 December 2014. 
  33. ^ "SC Judicial Department". Judicial.state.sc.us. Retrieved 16 December 2014. 
  34. ^ "FAMILY CODE CHAPTER 2. THE MARRIAGE RELATIONSHIP". Statutes.legis.state.tx.us. Retrieved 16 December 2014. 
  35. ^ (Texas Family Code Chapter 24).
  36. ^ "Utah State Legislature". Le.utah.gov. Retrieved 16 December 2014. 
  37. ^ Sheri Stritof. "Is My Common-Law Marriage Legally Recognized?". About. Retrieved 16 December 2014. 
  38. ^ "Senate Bill No. 1977" (PDF). Oklegislature.gov. Retrieved 16 December 2014.