A lot of people overlook common-law marriage. So when I meet people and tell them that I am a family law attorney, one of the most popular responses I hear is: “Oh, well I don’t have to worry about divorce because my significant other and I are not married.”
My reply is almost always: “Well, you may not have to worry about a ‘divorce’, but you can be held financially responsible in almost the exact same manner that you would be as if you were going through an actual divorce.”
As you can imagine, there is almost always a look of complete shock after this exchange!
Each state has a different approach to this issue. But, almost all states share the common goal of providing a person who has cohabited with their significant other in a committed, marriage-like relationship with some sort of a claim or remedy to seek financial restitution in the event that the relationship abruptly ends.
The most “common” (no pun intended) doctrine in this area is known as common-law marriage. Under this doctrine, a couple may be considered “married” without the couple formally registering their relationship and/or without performing a marriage ceremony.
Again, the rules and elements for such a claim vary from state to state. Cohabitation is typically required, but there must be a greater showing than simply living together. For example, most states require the couple to act in a manner where they represent themselves and hold themselves out to other as if they were married. This could mean anything from signing legal documents as husband and wife to simply referring to one another as “my husband” or “my wife.”
In turn, it must usually be shown that both parties consented to the marriage, both parties were of legal age to marry, and neither had any sort of impairment that would prevent them from being able to consent to the marriage.
In the U.S., only nine states and the District of Columbia recognize common-law marriage. But, this does not mean that a common-law marriage cannot be recognized by another state! Under the Full Faith and Credit Clause of the United States Constitution, a common-law marriage that was validly created in one of the states that recognizes the doctrine can be treated as valid in another “non-common-law marriage state” if the couple moved to such a state after formation of the common-law marriage. Many states have taken this topic on and have enacted legislation abolishing common-law marriage. However, such marriages established prior to the legislation still may be recognized as valid.
While California does not have any law allowing for establishment of a common-law marriage (other than the recognition of such a marriage from another state under the Full Faith and Credit Clause), it does have a similar doctrine in place known as “palimony.” The term “palimony” is not a legal or historical term, but instead is a colloquial reference established in connection with a seminal California Supreme Court case called Marvin v. Marvin (1976) 18 Cal.3d 660.
In the Marvin case, the plaintiff alleged that she and the well-known actor Lee Marvin had entered into an oral agreement with one another to, in essence, combine their efforts and earnings and share equally any and all property accumulated. The California Supreme Court elaborated that such a contract may also be “implied in fact” based upon the parties’ conduct and cohabitation. Later cases further explained that a “palimony” partner could even be entitled to regular, ongoing financial support similar to spousal support or alimony.
So, a party who is able to prove a palimony claim may be entitled to a share of assets accumulated during a non-marital relationship and/or monthly financial support in a manner similar to spousal support. To effect such a result, the Court is given discretion to look at a wide variety of remedies in order to divide property equitably.
Palimony cases are contract cases and thereby are not handled by the Family Law Court. Instead, they are handled by the Civil Litigation division of the local Superior Court. In most instances, that means that the case will be decided by a jury rather than by a family law Judge. Currently, palimony is recognized in 28 states throughout the U.S.
Although common-law marriages don’t have a “divorce” — the financial responsibility can sometimes be relatively similar. If you are facing any of the situations described above in your common-law marriage, it is imperative that you consult with an experienced attorney to learn more about your rights.