Common Law Marriage

California and Common Law Marriage

I am frequently asked a question that goes something like this:

"My boyfriend and I have been living together for 7 years, are we common law married now?"

Unfortunately (or fortunately for some), California does not recognize common law marriages. Knowing this, you should take immediate steps to protect your rights if you are living together.

To protect your rights as cohabitants (living together), you can take a simple step by preparing your own Cohabitation Agreement (which there is a good software program and is inexpensive on the banners called Standard Legal .

However, you should also think long term as a couple and think of each of your rights and prepare a Living Will, Living Trust or simple Will. These legal documents are a little more complex, but again you don’t have to hire an attorney if your circumstances are like the average American. There is a service that will draft them for you, Legal Zoom, who does a very good job, has tens of thousands of happy, satisfied customers, and you can save up to 85% of what an attorney generally charges. (See their banner below).

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There Are Not Many Common Law Marriage States Left

In fact, there are only about a dozen states that still recognize common law marriages and have statutes to protect those that qualify by treating the couple as "married" if they fulfill
the statutory requirements for a common law marriage.

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Common law marriage is still recognized in the following states and Washington D.C.:

(Click on any link to see the common law requirements for that state.)

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So unless you live in one of these states, you may not be married! Even if two people lived together for 20 years, you are not married. In addition, there must be intent to be

married in a common law marriage state.

The most typical common law marriage statutes have the following requirements:

• -  a man and wife lives together in a state that recognizes common law marriages
• -  they cohabitant for the statutory period of time (7 years, 14 years, etc.)
• -  they hold themselves out as married.

This last requirement is usually the deal breaker because it means the couple treats each other as husband
and wife. For example, they may use a common last name, refer to each other as husband or wife, file joint tax
returns. Actions like these show the public that there is an intent to be married.

Although California does not recognize common law marriage, California will honor another state’s laws and recognize
a couple who are "married" from one of the common law marriage states. Because of the “full faith and credit clause” of the United States Constitution, a state must honor the judgments, decrees, and laws of sister states. For example, if a couple fulfilled all the requirements to be considered common law married in Montana and then the couple moved to California, the State of California will recognize the couple as a legally married couple. However, the couple must have fulfilled all the requirements of the common law marriage statute in their home state before moving to California.

If the statute in Montana states that a couple must live together 10 years as part of their common law marriage law, and a couple moved to California after living in Montana for 7 years, and then 3 years in California, they are not common law married. They must fulfill all the requirements and be considered married in the eyes of the common law marriage state before California will recognize this as a legal marriage.

After a couple learns that they are not common law married in California, they generally ask a question or two about how a court would treat the division of their property should they separate. Without a valid marriage, there is no community property laws that apply. All the more reason you should have a cohabitation agreement if you are just living together.

One final point, there is no such thing as “common-law divorce.” Once you are legally married either through your state’s ceremonial marriages or through a common law marriage, you are married. The only way a marriage can be disolved is to be divorced by appropriate procedures in the place where the divorce is granted. That means, in all 50 states, only by a court order from the appropriate family or domestic court of the jurisdiction where the divorce is granted.