Latest / Life Is Legal / Are You Common Law Married? What "Living Together" Actually Means Under the Law | Ep 23

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Are You Common Law Married? What "Living Together" Actually Means Under the Law | Ep 23 · Life Is Legal

• 0:00
  [SPEAKER_00]: at least once a month.
• 0:02
  [SPEAKER_00]: Someone says to me, Brooke, we've lived together for over seven years.
• 0:07
  [SPEAKER_00]: Are we coming on married?
• 0:09
  [SPEAKER_00]: And I have to say maybe, but not because of the seven years, which is both the most annoying answer and the most honest answer that I can give.
• 0:21
  [SPEAKER_00]: So this episode is going to do two things.
• 0:25
  [SPEAKER_00]: Kill the biggest myths about common law marriage, and explain what common law marriage is and where it exists.
• 0:34
  [SPEAKER_00]: Okay?
• 0:36
  [SPEAKER_00]: Hey everybody, welcome back to Life is Legal where we unpack the laws that sneak into everyday lives without the Latin, the lecture, or the Stodgy Lawyer vibe.
• 0:51
  [SPEAKER_00]: I'm Brooke Hardy, lawyer, legal translator, and destroyer of legal myths.
• 0:58
  [SPEAKER_00]: Today, we're talking about common law marriage.
• 1:02
  [SPEAKER_00]: Call me crazy, but I just don't think it's too much to ask to know whether you're married or not.
• 1:06
  [SPEAKER_00]: Because here's the thing.
• 1:09
  [SPEAKER_00]: Common law marriage is not cute or basically married.
• 1:15
  [SPEAKER_00]: It's either a real marriage or it's not.
• 1:19
  [SPEAKER_00]: There's no in between.
• 1:21
  [SPEAKER_00]: And finding out which one you are after a breakup or a desk,
• 1:26
  [SPEAKER_00]: is a terrible time to discover that you've been living in this legal gray area.
• 1:32
  [SPEAKER_00]: So here we go.
• 1:33
  [SPEAKER_00]: Let me paint you a scene.
• 1:35
  [SPEAKER_00]: You're at brunch.
• 1:37
  [SPEAKER_00]: Your friend's sipping on her memosense.
• 1:39
  [SPEAKER_00]: She says, yeah, I mean, we're basically married.
• 1:42
  [SPEAKER_00]: We've lived together forever.
• 1:44
  [SPEAKER_00]: I mean, I'm pretty sure we're common locked at this point and everybody just nods like, yeah, probably.
• 1:52
  [SPEAKER_00]: then fast forward.
• 1:54
  [SPEAKER_00]: There's a breakup.
• 1:55
  [SPEAKER_00]: And suddenly it's, do I get half the house?
• 1:58
  [SPEAKER_00]: We bought together even though it's in his name.
• 2:02
  [SPEAKER_00]: Or am I entitled to half of all of our combined assets?
• 2:07
  [SPEAKER_00]: Are we married married?
• 2:10
  [SPEAKER_00]: Or, you know, if your partner dies, do you inherit everything?
• 2:14
  [SPEAKER_00]: The question, or are you treated like a stranger under the law because you weren't married?
• 2:23
  [SPEAKER_00]: And if they're in the hospital, do you get to make medical decisions for them?
• 2:29
  [SPEAKER_00]: Or does his mom who he hasn't spoken to in 10 years get to call all the shots?
• 2:34
  [SPEAKER_00]: These are real issues that come up all the time.
• 2:37
  [SPEAKER_00]: This is when the loss sort of centers into the room and says, okay, let's talk about what you meant.
• 2:44
  [SPEAKER_00]: and what you did.
• 2:46
  [SPEAKER_00]: So let's start with one of the biggest widespread myths out there about Kamala.
• 2:55
  [SPEAKER_00]: If you live together long enough, you're automatically Kamala married.
• 3:01
  [SPEAKER_00]: not true.
• 3:02
  [SPEAKER_00]: There is no magic number of years, not seven, not ten.
• 3:08
  [SPEAKER_00]: The seven-year thing is one of the biggest persistent bits of legal folklore out there.
• 3:16
  [SPEAKER_00]: I don't know where it comes from.
• 3:18
  [SPEAKER_00]: Even courts have noted that people believe it, but it's not a thing.
• 3:22
  [SPEAKER_00]: So time alone does not make you married, okay?
• 3:27
  [SPEAKER_00]: And if time alone made you married and living together, every freshman roommate situation would end in Alamo, Nate, if you think about it.
• 3:36
  [SPEAKER_00]: So another myth is if we add a kid together, that makes us common-law married.
• 3:43
  [SPEAKER_00]: Also, no.
• 3:45
  [SPEAKER_00]: You can share a child, a home, a dog, a joint checking account to pay bills, a hulu password, and still not be married.
• 3:54
  [SPEAKER_00]: Parenthood creates legal ties.
• 3:56
  [SPEAKER_00]: Yes.
• 3:58
  [SPEAKER_00]: Marriage creates a different set of legal ties.
• 4:02
  [SPEAKER_00]: Sometimes people have both, and sometimes they don't.
• 4:06
  [SPEAKER_00]: But one does not automatically create the other.
• 4:11
  [SPEAKER_00]: So this is the first reality check to about common law marriage.
• 4:18
  [SPEAKER_00]: Only a handful of states, plus DC, still recognize new common law marriage is going forward under their own laws.
• 4:29
  [SPEAKER_00]: Colorado, these are the states that allow it.
• 4:33
  [SPEAKER_00]: Colorado, Iowa.
• 4:36
  [SPEAKER_00]: Kansas, Montana, Oklahoma, Rhode Island, Texas, and Utah, New Hampshire, with some asterisk.
• 4:47
  [SPEAKER_00]: And then to make it extra fun, some states used to recognize common law, marriage, but stopped, while still grandfathering in the people that got common-lomerate before the law changed.
• 5:01
  [SPEAKER_00]: Or they recognize it only in narrow circumstances, or they only recognize it if a court says so under specific criteria that you have to go get proved up by a judge.
• 5:15
  [SPEAKER_00]: So.
• 5:17
  [SPEAKER_00]: While most states have abolished common law marriage, they still recognize one created legally elsewhere.
• 5:26
  [SPEAKER_00]: Okay, that's due to the U.S. Constitution's full faith and credit clause.
• 5:34
  [SPEAKER_00]: Which means, if you're legally common law married in Colorado, where it is legal, and you move to California, a state that doesn't recognize common law marriage under its own laws, you will be considered married in California, states honor each other's laws that way.
• 5:54
  [SPEAKER_00]: in the states that recognize it, common law marriage typically requires some version of four things.
• 6:04
  [SPEAKER_00]: Okay, number one capacity to marry.
• 6:07
  [SPEAKER_00]: You're old enough, usually over 18, and not already married, you have mental capacity to know what you're doing.
• 6:15
  [SPEAKER_00]: Okay, that's basic.
• 6:17
  [SPEAKER_00]: Then you,
• 6:20
  [SPEAKER_00]: lived together, cohabitation is going to be a requirement to establish common low marriage.
• 6:27
  [SPEAKER_00]: Then you have to be holding yourselves out as being married, like publicly represent two people that you come in contact with that you're married, so that objectively society thinks you are.
• 6:43
  [SPEAKER_00]: And then
• 6:50
  [SPEAKER_00]: So capacity I won't talk much about, that's just a given, but living together, holding yourself out as being married to the public and agreeing to be married.
• 7:00
  [SPEAKER_00]: Those are usually going to be the three prongs that establish it in the states that allow for it.
• 7:06
  [SPEAKER_00]: To illustrate a few of the nuances about common law marriage among the states, let me take you through a few of the specifics.
• 7:17
  [SPEAKER_00]: Texas calls it informal marriage.
• 7:21
  [SPEAKER_00]: Same thing as common law is call it informal.
• 7:24
  [SPEAKER_00]: And Texas law is unusually specific.
• 7:28
  [SPEAKER_00]: A marriage can be proved by evidence of either signing a declaration that gets filed in the county records where you and your partner say we agree that we are
• 7:40
  [SPEAKER_00]: common law married and we sign it and it was as of this date that we've been common law married by the way.
• 7:47
  [SPEAKER_00]: So that gets signs sealed delivered at the county clerk and it's done.
• 7:53
  [SPEAKER_00]: You're common law married.
• 7:55
  [SPEAKER_00]: Or more often than not, people rely on that three-pronged test, a grain to be married, living together and representing to others that they're married.
• 8:05
  [SPEAKER_00]: Now, here's a little Texas nuance that I want burned into everybody's brain because it gets overlooked a lot.
• 8:13
  [SPEAKER_00]: If you break up and wait too long to file a proceeding to prove that you were common law marriage, there's a rebuttable presumption that you didn't agree to be married.
• 8:29
  [SPEAKER_00]: And what we mean by rebuttable presumption is,
• 8:33
  [SPEAKER_00]: It's presumed that you were not married and you have to prove that it was.
• 8:36
  [SPEAKER_00]: You've heard of shifting the burden of proof.
• 8:38
  [SPEAKER_00]: Well, now it's on me because I've waited more than two years to prove that there was a common law marriage.
• 8:46
  [SPEAKER_00]: Whereas if I had gone to a court to declare that we were common law married within the two years, it would be presumed that there was a marriage and my ex-significant other would have to prove the burden would be on him or her to prove that there was no marriage.
• 9:04
  [SPEAKER_00]: And that's a big deal, that shifting of the burden of proof, that can make or break a case.
• 9:10
  [SPEAKER_00]: So to summarize, the statute says that if a proceeding isn't started before the second anniversary of separation, it's rebutably presumed no agreement existed.
• 9:23
  [SPEAKER_00]: That's one of those quiet provisions that can absolutely change someone's life.
• 9:28
  [SPEAKER_00]: And also,
• 9:30
  [SPEAKER_00]: It's worth noting that while the statute uses the old husband and wife language, informal marriages absolutely available to same-sex couples, because of the federal constitutional laws that are in place.
• 9:46
  [SPEAKER_00]: OK, so let's talk about Utah.
• 9:50
  [SPEAKER_00]: That's the state where people say, we're come and learn married, and what they actually mean is, a court needs to validate a marriage that wasn't formalized.
• 10:02
  [SPEAKER_00]: So you have to go to a judge and formally prove up those three prongs.
• 10:08
  [SPEAKER_00]: OK.
• 10:09
  [SPEAKER_00]: Utah requires a court or an administrative order to establish the marriage, and it has a one-year timing requirement after the relationship ends to get that done.
• 10:22
  [SPEAKER_00]: So, Utah is work common on married and now we go to court to prove it within a year so that I can enforce my rights as a spouse.
• 10:33
  [SPEAKER_00]: Um, New Hampshire's kind of interesting, too.
• 10:36
  [SPEAKER_00]: It's a sneaky one, okay?
• 10:39
  [SPEAKER_00]: It has a statute that says, if people cohabitate and acknowledge each other as husband and wife or wife and wife or husband and husband,
• 10:51
  [SPEAKER_00]: and are generally reputed to be, meaning they have lived together and held each other out as spouse and agreed to be married for three years prior to when one of them dies.
• 11:07
  [SPEAKER_00]: For that time frame at least, they shall thereafter be deemed legally married.
• 11:16
  [SPEAKER_00]: That means it's essentially a posthumous after-death recognition mechanism.
• 11:23
  [SPEAKER_00]: New Hampshire does not recognize common law marriage during your lifetime.
• 11:27
  [SPEAKER_00]: So if you split up, you won't marry it anyway, so you don't need to divorce.
• 11:32
  [SPEAKER_00]: Translation, if you're in New Hampshire, common law marriage during life is not a thing, but it can be a little probate surprise.
• 11:41
  [SPEAKER_00]: So watch out for that one.
• 11:44
  [SPEAKER_00]: South Carolina.
• 11:46
  [SPEAKER_00]: It's another important one because people still repeat outdated information when it comes to common law marriage in South Carolina.
• 11:54
  [SPEAKER_00]: In 2019, the South Carolina Supreme Court abolished the ability to enter into a common law marriage going forward.
• 12:04
  [SPEAKER_00]: But they didn't undo prior marriages formed before that decision.
• 12:10
  [SPEAKER_00]: So, South Carolina is now what we call a grand
• 12:16
  [SPEAKER_00]: And then finally, Rhode Island and Oklahoma.
• 12:20
  [SPEAKER_00]: So both of those states recognize common law marriage, and they have a higher standard for proving those prongs, living together, usually pretty easy, holding yourself out in a grain to be married.
• 12:34
  [SPEAKER_00]: Most states are going to have a more probable than not.
• 12:38
  [SPEAKER_00]: Yeah, 51% sure these people were common law married.
• 12:42
  [SPEAKER_00]: But Rhode Island in Oklahoma have a clear and convincing evidence standard as opposed to the more probable than not standard.
• 12:53
  [SPEAKER_00]: So clearing convincing standard is somewhere between more probable than not and beyond a reasonable doubt, which is used in criminal trials.
• 13:03
  [SPEAKER_00]: We want to be sure if we're putting it someone in prison that they did it or sure as we can be.
• 13:08
  [SPEAKER_00]: So, more evidence like filing as a married couple, invitations, how they're addressed, how you list your significant other on employment records, all of that is helpful if you're trying to prove in any state, really, that you are common-loving rich.
• 13:29
  [SPEAKER_00]: Okay, now I keep saying this holding out.
• 13:31
  [SPEAKER_00]: Your health just self out is being married.
• 13:33
  [SPEAKER_00]: Most people get co-habitation.
• 13:35
  [SPEAKER_00]: Like, okay, yeah, we live together.
• 13:37
  [SPEAKER_00]: And most people get, okay, we had an agreement that we were married.
• 13:41
  [SPEAKER_00]: But holding yourself out, what does that really mean?
• 13:45
  [SPEAKER_00]: It's not, we're committed, or we wear rings, or we call each other, my boo.
• 13:52
  [SPEAKER_00]: My mom thinks we're basically married, that doesn't cut it.
• 13:57
  [SPEAKER_00]: It's more things like you introduce each other as your spouse.
• 14:01
  [SPEAKER_00]: You sign documents as a spouse.
• 14:03
  [SPEAKER_00]: You file income taxes as a married couple.
• 14:07
  [SPEAKER_00]: You list each other as spouse on insurance or employment forms.
• 14:12
  [SPEAKER_00]: your community generally understands you to be married, and you don't correct it.
• 14:18
  [SPEAKER_00]: In other words, the law looks for public behavior consistent with marriage, not just private commitment.
• 14:27
  [SPEAKER_00]: And that's why,
• 14:30
  [SPEAKER_00]: common law marriage has really gotten harder to read culturally.
• 14:36
  [SPEAKER_00]: Because on the one hand, modern couples do all kinds of marriagey things without being married.
• 14:43
  [SPEAKER_00]: It's much more common now to share a life without sharing this legal status.
• 14:48
  [SPEAKER_00]: People are living together and having kids without ever having tied the knot.
• 14:54
  [SPEAKER_00]: It's not that big of a deal anymore.
• 14:56
  [SPEAKER_00]: And on the other hand,
• 14:59
  [SPEAKER_00]: it's not unusual at all for people to be married and for a wife to maintain her maiden name and maintain her own accounts.
• 15:10
  [SPEAKER_00]: Other than living together there may not be a lot of outward facing factors that tell us a couple is married even though they are.
• 15:18
  [SPEAKER_00]: So it can get, it can get really fact specific and difficult to prove in some instances.
• 15:29
  [SPEAKER_00]: It's really, in my opinion, that third factor, a green to be married, that leads to a ton of litigation.
• 15:39
  [SPEAKER_00]: A lot of he said she said, or she said she said, either in the divorce context or the death context, because the stakes are high, the agreeing to be married is sort of the more subjective
• 15:56
  [SPEAKER_00]: living together and holding yourselves out, those are fairly objective things that you can prove.
• 16:01
  [SPEAKER_00]: But people very rarely sit down on the couch together and ask, are we agreeing to be married?
• 16:08
  [SPEAKER_00]: You know, it's never spoken aloud.
• 16:12
  [SPEAKER_00]: And even if they do sit down on the couch and have that conversation, how do you prove there was that agreement without it turning into a fight
• 16:24
  [SPEAKER_00]: if one of you passes away, you know, how do you know that both parties agree?
• 16:29
  [SPEAKER_00]: How do you know that that survivor isn't just saying that, yeah, we totally agree.
• 16:34
  [SPEAKER_00]: So it gets, it gets a little dicey.
• 16:37
  [SPEAKER_00]: In the probate world, we see fights all the time, usually between a purported, common loss
• 16:52
  [SPEAKER_00]: the purported common loss spouse usually can inherit in their state.
• 16:58
  [SPEAKER_00]: But if they weren't the spouse, they won't inherit.
• 17:02
  [SPEAKER_00]: And the people who died, or sorry, the person who died is no longer around to say, yeah, we, we a greater, no we didn't.
• 17:10
  [SPEAKER_00]: So that's what lawsuits are made of.
• 17:13
  [SPEAKER_00]: And the more wealth, the more there is to fight over, the bigger, the bigger the fight.
• 17:18
  [SPEAKER_00]: And this is one of those reasons why we love doing wills for folks who aren't formally married because in the will you say as of the day I'm signing this will I am married or I am not married.
• 17:34
  [SPEAKER_00]: There's your agreement or no agreement at least as of that day.
• 17:41
  [SPEAKER_00]: So now here's the plot twist that I need everybody to hear for real, if you are common law married, you don't just break up.
• 17:54
  [SPEAKER_00]: You need a divorce full stop and there is no such thing as a common law divorce.
• 18:03
  [SPEAKER_00]: So, if you are common-law married and you separate and you never divorce, you may still be married later, which means you might not be able to marry someone else.
• 18:15
  [SPEAKER_00]: or property acquisitions later, certainly get messy.
• 18:19
  [SPEAKER_00]: If you're married, you're spouse from years prior may have an interest in what you're accumulating in the future.
• 18:27
  [SPEAKER_00]: Death and inheritance, like I've said, issues can get very messy in that context.
• 18:34
  [SPEAKER_00]: this is how people end up in a situation where that he's say, wait, I'm still married to who?
• 18:42
  [SPEAKER_00]: And the answer is that person from 2011 that you thought you just broke up with, they're now asserting the, you know, a common law marriage.
• 18:54
  [SPEAKER_00]: To illustrate some of this, let's do a fictional example.
• 18:57
  [SPEAKER_00]: Okay.
• 19:00
  [SPEAKER_00]: meet Jess and Ryan.
• 19:02
  [SPEAKER_00]: Jess and Ryan live together in Texas.
• 19:06
  [SPEAKER_00]: They've been together for nine years and shared dog name waffles and Ryan introduces Jess at parties as my wife because he thinks cute and Jess laughs and doesn't correct him because she thinks it's cute.
• 19:23
  [SPEAKER_00]: And they buy furniture together, they share a bank account for bills and just as listed as spouse on a couple of forms because HR made it easy and they were running late.
• 19:36
  [SPEAKER_00]: They never get a marriage license, just says, or not, married married, right, and Ryan says, well, yeah, I mean, basically we are.
• 19:47
  [SPEAKER_00]: And then they split up.
• 19:50
  [SPEAKER_00]: Jess moves out, new boyfriend, new dog, and two and a half years later, Jess is trying to buy a house.
• 19:58
  [SPEAKER_00]: And someone says, where you ever married, and Jess says, no.
• 20:01
  [SPEAKER_00]: And then something comes up that suggests Ryan claims that they were informally or common law married.
• 20:11
  [SPEAKER_00]: So now Jess is dealing with the legal definitions of what agreement was, what words needed to have been set, how far do you need to go with your language to agree to be married?
• 20:26
  [SPEAKER_00]: And whether they held themselves out as married at a level that satisfies that prong, and whether Ryan is trying to retroactively label something as a marriage, maybe for financial leverage.
• 20:41
  [SPEAKER_00]: It happens and you've got a lawsuit on your hands and it's no fun.
• 20:51
  [SPEAKER_00]: So that can be the bad news.
• 20:54
  [SPEAKER_00]: So what's the good news?
• 20:56
  [SPEAKER_00]: What can you do?
• 20:57
  [SPEAKER_00]: Okay, if you're not legally married.
• 21:00
  [SPEAKER_00]: If you're listening and thinking, wait, do I need to worry?
• 21:03
  [SPEAKER_00]: Here are some home grown-up steps you can take to avoid a common law marriage nightmare.
• 21:11
  [SPEAKER_00]: Number one, know whether your state recognizes it.
• 21:17
  [SPEAKER_00]: Get on Google, get on chat, GPT, whatever.
• 21:20
  [SPEAKER_00]: See what your state's laws are on it.
• 21:22
  [SPEAKER_00]: Start there.
• 21:23
  [SPEAKER_00]: And if your state doesn't recognize it, case closed, you're not common-lomerate.
• 21:29
  [SPEAKER_00]: Second, be intentional about language.
• 21:34
  [SPEAKER_00]: OK, if you do not intend to be married, don't repeatedly represent yourselves as being married in social contexts.
• 21:44
  [SPEAKER_00]: Corrects people.
• 21:46
  [SPEAKER_00]: don't file your taxes jointly, maintain those types of boundaries, and forms matter, by the way.
• 21:55
  [SPEAKER_00]: That's always what gets introduced as evidence.
• 21:58
  [SPEAKER_00]: Spouse is a legal word.
• 22:01
  [SPEAKER_00]: Don't just list them as your spouse at work if he's not.
• 22:06
  [SPEAKER_00]: But if you do intend to be married, come and law married,
• 22:10
  [SPEAKER_00]: file a declaration of informal marriage.
• 22:15
  [SPEAKER_00]: Declaration of informal marriage at the county clerk's office if your state allows it.
• 22:21
  [SPEAKER_00]: Again, little research on your part required, you can usually find that form online, by the way.
• 22:27
  [SPEAKER_00]: And it states when you all think you became common-law married and that date by the way matters when it comes to property rights.
• 22:36
  [SPEAKER_00]: So definitely think about that.
• 22:40
  [SPEAKER_00]: or, you know, if your state doesn't have that type of form, but let's accord formally recognize it, like Utah.
• 22:49
  [SPEAKER_00]: Go get a court order declaring your common law marriage as valid and legal.
• 22:54
  [SPEAKER_00]: Again, it may be that the forms to do that are online.
• 23:00
  [SPEAKER_00]: I'm not sure for, you know, depending on your state, but look into that if you, if you have any questions around, you know, whether your common law marriage would be valid or not.
• 23:09
  [SPEAKER_00]: And if that option isn't available, sign a piece of paper with your common loss spouse, stating that you all do agree that you have been married since X date and sign it and date it and notarize it if you can and keep it.
• 23:27
  [SPEAKER_00]: Otherwise, go get a marriage license and get married at the courthouse to make it clean because common law marriage is often what happens when people want the benefits of marriage without the formality.
• 23:42
  [SPEAKER_00]: But then they discover the formality was what kept things clean.
• 23:48
  [SPEAKER_00]: You know?
• 23:50
  [SPEAKER_00]: So, if you only remember one thing from today, remember this.
• 23:56
  [SPEAKER_00]: common law marriage is not something that happens to you because you've been together a long time.
• 24:02
  [SPEAKER_00]: It's something you create when you mutually agree to be married and then live like you mean it in a state that recognizes it.
• 24:12
  [SPEAKER_00]: And if you created it, congratulations are married for real and you'll need a formal divorce to undo it.
• 24:22
  [SPEAKER_00]: So if this information was helpful, hit subscribe and tell me in the comments what you want me to talk about next.
• 24:29
  [SPEAKER_00]: And remember, life is legal.
• 24:32
  [SPEAKER_00]: So you got another rules.
• 24:33
  [SPEAKER_00]: We'll see you next time.