July 2016 Common Law Marriage Update

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July 20, 2016 – Common Law Marriage is a marriage that exists by law but has not been validated by a marriage license and/or a ceremony.  Common Law Marriage has been utilized in the United States since the late 1800s.  While it does not exist in many states today, it did exist in many states for those who did not go through the process of being officially married but that did in fact intend to be married.  It also existed in earlier times to protect children of a Common Law Marriage from being considered illegitimate.  States that still recognize Common Law Marriage are:

There are other states that have recognized Common Law Marriage but have recently abolished it.  These states will however recognize any Common Law Marriages that were created prior to the date that it became abolished.  These states include:

In Pennsylvania and New York, both states have abolished Common Law Marriage.  Pennsylvania abolished it in 2005 and New York in 1993.  However, all states must recognize a Common Law Marriage from another state if that state does in fact have Common Law Marriage due to the Full Faith and Credit clause of the United States Constitution.  In order to qualify for Common Law Marriage you must meet the following requirements:

  1. You must have the legal right to enter into a Common Law Marriage
    • Both parties must be 18 years of age
    • Both parties must be of sound mind
    • Both parties cannot be married to someone else
  2. Both parties must live together (Time lengths vary by state)
  3. Both parties must have the intent to enter into a marriage
  4. Both parties must hold themselves out as husband and wife
    • Example: Referring to one another as husband and wife in public, filing joint tax returns, taking the same last name, being listed as beneficiary, etc.

While each state has their own guidelines, the above tend to be the general guidelines for most states.  Please note, ironically, if someone enters into a Common Law Marriage and then wants to be separated they must get a divorce under the law.

One of the main issues with establishing a Common Law Marriage comes when one spouse passes away and the other wants to collect under social security, file a lawsuit on their behalf or needs to establish the marriage for some other reason.  You must be able to prove all elements listed in a state where Common Law Marriage was or is legal.

In Renshaw v. Heckler, 787 F.2d 50 [2d Cir 1986], a couple lived together in New York but had spent a total of sixteen (16) days in Pennsylvania throughout their time together.  The husband passed away and the wife wanting to collect Social Security benefits.  She was able to do so by showing sufficient evidence that a Common Law Marriage was created during their time in Pennsylvania.  New York had to recognize this marriage under the Full Faith and Credit clause, thus giving her the right to Social Security benefits.

In Carpenter v. Carpenter, 617 NYS2d 903 [2nd Dept 1996], a couple spent one week in Pennsylvania in 1969 and four days there in 1989.  The court found that the parties held themselves out as husband and wife and complied with all requirements listed above according to Pennsylvania law and therefore entered into a Common Law Marriage which New York must recognize.  The same was held for Tornese v. Tornese, 233 AD2d 316 [2nd Dept 1996], where a couple spent a short weekend, followed by several years, in Pennsylvania.   The Court found that Pennsylvania does not require any time limit for living within their borders before a Common Law Marriage could be formed.

Common Law Marriage can be tricky but, as long as all the requirements are met in a state that has Common Law Marriage or that did whenever the couple intended to be married and visited there, Common Law Marriage can be valid.

by Keegan Miller