Common Knowledge

"Common-law" marriages aren't nearly as common as most people believe. Here's what you need to know to protect your rights while you're together -- and after you break up.

By Brad Marcoux
Updated: August 31, 2014
Divorce Law and Family Law

You're in a relationship, and for the past decade you've been living together. You share everything: the chores, the shopping, the bills, raising your two children, walking the dog. At parties, you introduce each other as husband and wife. The only difference between your relationship and the Smiths' next door is that you didn't bother with the ceremony or the marriage licence. That doesn't matter, though, because as far as you're concerned, you're in a "common-law" relationship. If something did happen and it all ended, you'd have the same protection under the law as the Smiths do, right? While this is what high-profile cases and popular terms such as "palimony" have led many to believe, no matter how sure you are about your marital standing, the law might say otherwise.

What and where

The concept of common-law marriage dates back hundreds of years. Originally, it was designed to allow those without easy or convenient access to marital authorities to enjoy the rights and benefits of a legal marriage. Even today, some states will consider a couple to be "married" -- and to be entitled to the same legal protection as those who follow a more traditional route -- as long as they meet certain requirements. Generally speaking, if a couple is legally eligible (i.e. they fulfill gender and age requirements), is cohabiting, have consecrated the relationship, hold themselves out as husband and wife to the community, and live in a state where such relationships are recognized (see "Uncommon Recognition"), they are considered to be in a common-law (or in some states, "informal") marriage.

Many states, however, don't recognize common-law marriages. "It's basically felt that, in modern times, the formality of marriage isn't inconvenient," says Jeff Atkinson, an adjunct professor at DePaul University College of Law in Chicago who serves on the American Bar Association (ABA) Family Law Section Council, and is the author of The ABA Guide to Family Law. "It's easier to administer the law if there's documentation. Generally speaking, more than three-quarters of US states prohibit common-law marriages. This tends to prevent unplanned loss of property or of income upon the breakup of the relationship." Beyond misconceptions about the legality of common-law marriages, some people believe that they're simpler to dissolve than traditional marriages. The fact of the matter is that if you fulfill the requirements for a common-law marriage, you're legally married, which makes the dissolution of your relationship a divorce: the lack of a wedding won't make ending your relationship easier or simpler.

Complexities upon complexities

Furthering this confusion is the fact that you don't have to currently be living in a common-law state in order to be covered. If you fulfilled all of the requirements in Washington, DC, and then subsequently moved to and ended your relationship in Chicago, the rules governing your marriage in The District of Columbia would be applied to your divorce. Confused? Then just imagine the complications that can arise when such relationships end.

Regardless of whether they sanction informal marriages, some states grant cohabiting couples certain legal rights and privileges. In New Jersey, for example, common-law relationships have been explicitly prohibited since the 1930s, but palimony (legally arranged support payments between an unmarried couple) does exist on a contractual basis -- in other words, cohabiting couples can use contract law to arrange for support in the event that the relationship ends. Unlike some other states, New Jersey is one of the only ones that legally recognizes the term "palimony," as well as oral contracts. "It's possible to have a verbal contract in which you've been promised support," says Jeffrey Epstein, a shareholder with the New Jersey firm of Wilentz, Goldman & Spitzer and a fellow of the American Academy of Matrimonial Lawyers (AAML), "but you must have witnesses who know exactly what Joe promised Sally."

And if you're in a long-term relationship where there has been some sort of "consideration" (i.e. you've paid the bills and in return your "spouse" has minded the house and kids), palimony and property division may be owed without any spoken or written agreement under a "quasi-contractual" relationship. "Usually, such agreements are very time-dependent," says Epstein. So living together for a couple of months isn't likely to make you responsible for palimony, but the longer the time spent together, the more likely the courts will consider your relationship a quasi-contractual one. Quasi-contractual laws are currently only applied in opposite-sex arrangements, but according to Epstein, "it's only a matter of time" before someone attempts to use them in a same-sex case. And written cohabitation agreements, which can outline the division of responsibilities as well as assets in case of a breakup, can be made between heterosexual or homosexual couples. "But even with such flexible laws, you must remember that most judges don't give unmarried people the same rights as married people, so you must be careful," says Epstein.

New York's laws, by comparison, are less flexible. "If you aren't considered to be married, then under the eyes of the law in New York you are effectively strangers," says Lester Wallman, a partner in the firm Wallman, Greenberg, Gasman & McKnight and the author of Cupid, Couples & Contracts. "If you aren't husband and wife, you must show that there was some sort of contract, either written or oral, to prove that you made arrangements for the dissolution of the relationship. Otherwise, there is no basis for recovery." New York does, however, recognize a "living-together agreement" in which two people of any sex can define their responsibilities surrounding such things as food and the lease. "It can also deal with major factors such as a provision for support -- a fee for non-sexual services rendered," says Wallman. "There can also be arrangements in case of the death of one of the parties." "Quasi-contractual" agreements don't exist in New York.

Ron Rosenfeld, a fellow of the AAML and a partner in the Beverly Hills firm of Zimmerman, Rosenfeld, Gersh & Leeds, says that California law is similar. "If you're not married, cohabitation and consummation does not entitle you to support," he states. "Any remedies you seek must come from something other than marital law." California does allow for contracts between unmarried couples who are cohabiting, but unless you have something in writing or witnesses to testify you had a verbal agreement, "you have no rights," says Ira Lurvey, the former chair of the ABA Family Law Section and the California State Bar, now in private practice in Los Angeles. "You are free to set up any kind of arrangement you'd like under contract law, but the state would still like people to be married."

On the opposite end of the scale, there are states like Illinois. "We are definitely in the opposite corner from states like New Jersey," says Beverly Pekala, the principal of the law offices of Beverly Pekala and author of Don't Settle for Less. "You can pursue recourse through real estate or contract law, but the law clearly states that if you want the same rights as a married couple, you should get married." According to Donald Schiller, a partner in Chicago-based Schiller, DuCanto & Fleck, Illinois has made it very clear that quasi-contractual and verbal agreements aren't acceptable. "You cannot get support based on cohabitation," he says. "If you're not married, you might set up an agreement to take care of the estate, but unless you're married, you have very little recourse for support."

Remember retirement

Liberal as some states are, none of them allow for easy division of one of the most valuable assets in a relationship -- the pension. Verbal, written, and quasi-contractual agreements can only deal with the division of assets and the payment of support, so "the pension won't qualify as an asset, and won't be equitably distributed when the relationship fails," says Jeffrey Epstein. Even if your partner had signed an agreement allowing you half of the pension, the complexities of pensions might not make such a division possible. "The only way to guarantee yourself a portion of the pension is to get married," asserts Pekala.

The complexities of pensions make division difficult, but don't think that being the beneficiary on any retirement plan protects you if you break up, since the person who holds the plan can change the beneficiary at any time. Again, if you want to enjoy the rights of a spouse, you must become one.

Till death do us...

Does all of this mean that despite years of time, love, and effort involved in a relationship, you could lose everything? The short and frightening answer is "yes." Since you aren't protected under marital laws, the dissolution of your relationship may be no different than if you were to be simply moving out on a roommate, and any legal action you take will have to be proven not on the grounds that the two of you acted as a married couple, but on the basis that the two of you made an agreement about what was going to happen when the relationship ended. And how many couples sit and discuss who is going to get the sofa or Aunt Elva's good china when things are going well, never mind having such a conversation in front of witnesses, or in a legal document? But this is exactly what you must do if you hope to receive any property or support if your relationship ends. Even if you live -- or have lived -- in a state that recognizes common-law marriages, "that relationship must still be provable," says Lurvey. "You must have contracts, written or oral, and if they are oral, you must have witnesses. If it turns into a 'he says/she says,' then it will come down to who the court believes."

Other ways and means

This doesn't mean that you are guaranteed to lose everything if you've been in a long-term cohabitation relationship, however. It does mean that things are far more complex. If, for example, you've invested in the house, but it's in your ex-partner's name, could you lose your whole investment? "I wouldn't go that far," says Atkinson. "You could make an equitable claim of unjustified enrichment and the court could order payment." The same may go for the rest of the property. But don't expect any kind of support for yourself -- no matter how much time or money you've invested. "The fact is that you're cohabiting -- you're not married," says Rosenfeld. "You may be entitled to some property, but you are not entitled to support." Children muddy the waters even further, as a parent is obligated by law to help support his or her kids in their upbringing -- whether that parent is married, single, separated, or divorced.

The bottom line

If you're living in a state that doesn't permit common-law marriages and you're concerned about protecting yourself (as you should be, no matter how good the relationship is), the only way to do it is to create a legal contract that spells out the details of your partnership agreement -- including who is responsible for the bills, duties around the house, and, if the partnership ends, how house, property, and support issues will be dealt with. You can tailor such an agreement to meet your individual concerns and needs, but be sure to have an attorney draft your agreement and confirm that it is valid in your state. At the very least, make sure that you have discussed such things with your partner, and that you have witnesses who know about your arrangement. But be aware that this latter method may be faint assurance, or none at all, if you end up in court. "You have to show that there is a written or an oral contract that stipulates such things as property division and support," says Wallman. "If you cannot, then there may be no basis for recovery. And as oral contracts can be difficult to prove, the cardinal rule here, as in anything else, is to get it in writing." Some experts put this even more strongly. Alton L. Abramowitz, head of the matrimonial practice at Cooperman Levitt Winikoff Lester & Newman, states that "there are technical issues involving oral contracts which make them virtually unenforceable in the NY courts (e.g. the statute for frauds)." With the complexities of the legal system, the importance of getting something in writing cannot be emphasized enough.

If you're in a state where contracts based on cohabitation are not accepted (Illinois, for instance), you may want to consider setting up a trust. "The great thing about setting up a trust is that if it says the moon is made of green cheese, then according to the execution of the trust, it is," says Pekala. She suggests having the monied partner make monthly deposits into a trust account set up on mutually-agreed-upon terms. As in a contract, you're free to make any sort of arrangements you wish, and you can set it up at any time.

Talk it over

All of this depends, of course, on getting agreement from your partner in setting up a trust or signing some sort of legally-binding documentation. The problem is that some people are cohabiting precisely because they believe it avoids all of the responsibilities that a legally-defined relationship such as marriage entails. Convincing them that a legal agreement or trust can not only avoid terribly complex legal battles in the future but can also prove that they have your well-being at heart may not be an easy matter, but it's absolutely necessary to secure your future. Contracts aren't romantic, but Ira Lurvey sums up the situation well: "Without a contract, marital or otherwise, you have no rights. So either get married, get a written agreement signed, or, sad as it is to say, find someone else."

Uncommon recognition

Since the turn of the century, there has been an increasing trend towards an explicit statutory prohibition on common-law marriages, so that today there are only 11 jurisdictions that recognize the practice. They include: Alabama, Colorado, The District of Columbia, Idaho, Iowa, Kansas, Rhode Island, South Carolina, Montana, Pennsylvania, and Texas (where they're called "informal marriages"). Others, such as Georgia, have banned the practice within the last few years. So don't let what anyone tells you, or even this list, be a comprehensive guide: be sure to check with your local state authorities to see if your state accepts common-law relationships. Or better yet, if you're in such a relationship, make an appointment with a lawyer, and get an agreement in writing -- but be sure that your counsel is fully versed in the complexities of your state. Don't be afraid to ask questions about the likelihood of your contract standing up in court. Otherwise, even the best drafted agreement may not help you if the relationship ends.

Common facts

According to the US Census Bureau's Fertility and Family Statistics Branch, the number of unmarried couple households has increased dramatically over the last 24 years. In 1970, there were 523, 000 households in which unmarried couples lived together; by 1994 that number had jumped to 3.7 million -- a whopping seven-fold increase. Fully one-third of these households also contained children under 15. And while these numbers may be slightly inflated due to landlord-tenant or similar arrangements, the definition of an "unmarried couple household" includes only heterosexual couples -- so the actual number of people who are cohabiting as if they were spouses is likely much higher across the nation. Some numbers from the National Center for Health Statistics (NCHS):

  • 41.1% of all women between the ages of 15 and 44 have cohabited with a man at some time in their lives.
  • Over 65% of those women have been married at least once in the past.
  • 57% of those cohabitations resulted in marriage -- but about one-third ended up breaking down.
  • At any one time, about 10% of all American women are cohabiting.

For more articles on assistance regarding divorce law, visit http://www.divorcemag.com/articles/Divorce_Law

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April 27, 2006
Categories:  Legal Issues

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