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Jinx
04-11-2000, 02:25 PM
Is there really such a thing? What conditions constitute a common-law marriage? Is this really binding? (I recognize, of course, such laws vary across the US.)



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"They're coming to take me away ha-ha, ho-ho, hee-hee, to the funny farm where life is beautiful all the time... :)" - Napoleon IV

monster
04-11-2000, 03:09 PM
As far as I know, the couple must live together and represent themselves as being married. For example, they refer to each other as "my husband", or "my wife". The wife identifies herself as "Mrs. common-law husband's last name". Basically that they live their life as if they had a wedding ceremony, just without the certificate.

Of course, Singledad seems to know more about law in general, so I'd check with him. :)

Random
04-11-2000, 03:18 PM
Monster has the essence of it. Some states require that the cohabitation last for a set minimum period of time.

Common-law marriage is not recognized in most states, and the list of the states that do allow it is steadily shrinking. For example, Georgia stopped recognizing new common law marriages as of 1-1-97. Illinois does not recognize them, and hasn't for a long time. (which, on a personal note, is something that I am thankful for.)

SingleDad
04-11-2000, 03:22 PM
monster: I'm almost certain that I can legally ask you to bite me! :p

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Time flies like an arrow. Fruit flies like a banana.

MysterEcks
04-11-2000, 03:29 PM
Yes, there is actually common law marriage in some states--those that still recognize the condition. I believe it requires:

(1) Two people who are eligible to mary under the laws of that state--not already married, at least the legal minimum age. (There are also factors such as blood relationship. First cousins, for instance, can marry in some states, but not in others.)

(2) That the two parties hold themselves out as married to the public (such as registering at a motel as "Mr. & Mrs.").

And, yes, if it's recognized, it's binding...at least with things such as spousal support/property/after-death distributions. I don't know whether it actually requires a divorce to get out of, but it would logically seem it should.

As for the states that don't have common law marriage...there was a case some years back involving two residents of New York State--I believe he died and she wanted his estate, but they'd never married. They fit the requirements for common law marriage, but NY doesn't recognize it. However, the couple had held themselves out as married in Pennsylvania as well, and PA does have CLM. The court decided that a valid common law marriage had been established in PA, and that NY should recognize it under the full faith and credit section of the US Constitution (Article IV, Section 1).

So...be careful playing "let's pretend" with your date--it might get more complicated than you thought.

Eve
04-11-2000, 03:29 PM
Woo-hoo! My research pays off! Anna Held and Flo Ziegfeld had a common-law marriage. So did Paul Bern and Dorothy Millette (Bern was later married to Jean Harlow). The State of New York recognized a marriage if the couple had been living together as man and wife for eight years—Anna and Flo had to get a legal divorce when they split in 1912, as they had been together since 1897. Of course, this was back in the early 20th century; things may have changed since then.

Iguana Boy
04-11-2000, 03:31 PM
I can't speak for you guys in the US, but here in Scotland common law marriages are recognised in law. They're more properly known as marriages by "co-habitation and repute" and basically as long as the couple live as man and wife, and consider themselves as married for all intents and purposes then they ARE married. I used to work with a guy who had such a marriage and it had been officially recognised as such by a court.

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The Scots - never trust a race whose national dress includes a concealed knife.

monster
04-11-2000, 03:39 PM
Hey!!!! It was a compliment!!!

You can bite me too! :)

ultress
04-11-2000, 04:08 PM
In North Carolina, living together as man and wife for 7 years constitutes a common law marriage.

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*Sigh*. So many men, so few who can afford me Original by Wally

I've learned that if someone says something unkind about me, I must live so that no one will believe it.

Billdo
04-11-2000, 04:30 PM
Wow, common-law marriages again. One of my favorite topics. The first month I was on the board there were four threads that addressed the topic of what is required for a marriage to be legal, and there's been a common-law marriage drought since then. Prior threads in which you can get Billdo's pearls of wisdom :rolleyes: on common-law marriage include: Commonlaw Marriage in Texas (http://boards.straightdope.com/ubb/Forum3/HTML/005700.html), What constitutes a legal marriage (IRS) (http://boards.straightdope.com/ubb/Forum3/HTML/005829.html), You Too Can Be a Minister (http://boards.straightdope.com/ubb/Forum3/HTML/005439.html), and Same-sex Marriage (http://boards.straightdope.com/ubb/Forum1/HTML/000462.html) (the last two just address it tangentially). It is clear that there are many misconceptions about common-law marriages out there.

Yes, there is such a thing as a common-law marriage. It comes, not surprisingly, from the common law of Merrie Olde England, which was received here in the U.S. during colonial times, and retained (for the most part) after the American Revolution. I'm not surprised that they remain in Scotland, and the Scottish term for them used by Iguana Boy, marriages by "co-habitation and repute", is a pretty darn good one.

My belief as to why they formed is that back before there was detailed record-keeping, couples would often simply start living together as husband and wife without any formal ceremony or recognition of the relationship. The courts and authorities recognized these relationships as marriages equal in every respect to those that had been solemnized in a church. (I don't think they had marriages before civil officials back then, though I'm not sure).

In the U.S. common-law marriage have been abolished in most of the states, but remain in several, including Texas and Colorado (see other threads). New York has abolished common-law marriages, though I'm not sure exactly when.

A typical formulation of what is necessary to form a common-law marriage is that the parties "agreed to be married and after the agreement they lived together as husband and wife and represented to others that they were married." It is important to realize that to be a valid marriage, all three requirements must be met:

(1) The parties agreed to be married;
(2) the parties lived together as husband and wife; and
(3) the parties represented to others that they were husband and wife.

I don't know about the requirements that some states may have for living together for a period of time, though I'll research those. I haven't heard of them, and I don't think that North Carolina has them, because of the famous William Hurt case, where an ex-girlfriend of the actor sued him for "divorce", claiming they had entered into a common-law marriage during the several months they were living together in North Carolina while Hurt was shooting a movie. She lost the case because the court found there was no marriage.

I've read the case about the New York couple that travelled to Pennsylvania mentioned by MisterEycks, though I don't have the citation handy. In that case, the court held that a valid relationship was [b]not[b] established in Pennsylvania. I'll try to find it and give a citiation or more details.

Perhaps the most interesting development in the field is that many jurisdictions are developing recognition of de facto relationships between people that are not married. This is usually considered most contraversial when de facto status is given to same sex couples, but the point of much wider relevance is that marriage-type rights (e.g. the right to support at the end of the relationship and rights of visitation or custody of children) have been given to mixed-sex couples who cohabitate.

One example of this is found in the Canadian decision mentioned in Cecil's column on gay marriage (http://www.straightdope.com/columns/000128.html), which concerns a provision of Canada's Family Law Act, which allows a member of a couple living together for more than three years the right to apply for support when the cohabitation breaks up. The Canadian decision held that these rights should be applied to same-sex couples as well as mixed-sex couples. A similar ruling by the New Jersey Supreme Court, holding that the non-biological "parent" in a broken-up lesbian couple would be awarded visitation with a child raised by the couple because she was a "psychological parent." This case is discussed in the thread asking Gay Marriage a step closer? (http://boards.straightdope.com/ubb/Forum7/HTML/001683.html)

If you have any specific questions I'd be happy to take a shot at them.

-Bill

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You don't have a thing to worry about. I'll have the jury eating out of my hand. Meanwhile, try to escape.

Sig by Wally M7, master signature architect to the SDMB

Otto
04-11-2000, 05:18 PM
monster: I'm almost certain that I can legally ask you to bite me!

Unless you offer to pay, in which case it's solicitation.

astorian
04-11-2000, 06:40 PM
In the US, common law marriages are most likely to be recognized in Western states. And that makes sense, if you think about it- a ranccher in a far Western state might be pretty far from "civilization," as represented by judges or officially ordained clergymen. If such a man finally found a wife, he'd likely start living with her without benefit of a ceremony.

In the eastern states, judges and clergymen were easier to come by, and such arrangements were far less likely to be approved of.

Billdo
04-11-2000, 07:00 PM
Well, I've checked a few things out.

1) Ultress, North Carolina does not currently have common law marriage. North Carolina Statutessection 51-1 (http://www.ncga.state.nc.us/statutes/statutes_in_html/chp0510.html) requires that a marriage be solemnized by an "ordained minister of any
religious denomination, minister authorized by his church, or magistrate." I've also found a table (http://wwwsecure.law.cornell.edu/topics/Table_Marriage.htm) summarizing the marriage requirements of each U.S. state.

2) Eve, New York initially abolished common-law marriages effective January 1, 1902, but reinstated them effective January 1, 1908. New York then banned them again effective April 29, 1933, a ban which continues in effect. So Anna and Flo probably would be considered married by the time of the first abolition in 1902, and if not then, when they were reinstated in 1908. (I don't believe that there was any requirement that the relationship last seven years.)

3) MisterEycks, I found three cases addressing whether couples living in New York that briefly travelled to Pennsylvania would be be found married in a common-law marriage contracted during the short stay in Pennsylvania. Two cases held that short stays in Pennsylvania would suffice to form a marriage, Carpenter v. Carpenter, 208 A.D.2d 882, 617 N.Y.S.2d 903 (2d Dep't 1994) and Tornese v. Tornese, 233 A.D.2d 316, 649 N.Y.S.2d 177 (2d Dep't 1996). One recent oneSears v. Sears (http://www.nycourts.com/scripts/csearch.exe/DecisionRSLT?&CR=Pennsylvania_20Marriage&CT=&JUDGE=&crt=4&SRCH=dec&NL=10&SL=1&DFrom=&DTo=&RNF=1&RNL=1&FILE=3759), 700 N.Y.S.2d 626 (4th Dep't 1999), held that stays in Pennsylvania, South Carolina or the District of Columbia could not be the basis of a valid marriage. I also recently read another case rejecting a finding that a New York couple that travelled to Pensylvania would not be considered married, but could not find it. The other case was a lot more interesting, providing more detail and reasoning about the way common-law marriage works.

--Bill

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You don't have a thing to worry about. I'll have the jury eating out of my hand. Meanwhile, try to escape.

Sig by Wally M7, master signature architect to the SDMB

Eve
04-12-2000, 08:08 AM
Wow—thanks, Bill! Can I hire you as a research assistant? I'm gonna print this out, as I'm sure it'll come in handy in the future (for my books, not for my own personal life!!!).

Billdo
04-12-2000, 01:59 PM
My pleasure, Eve. Though I was hoping you'd take me as your personal assistant and we could try some of the parts of that cohabitating thing. I guess I'll have to take what I can get, though. ;)

MysterEcks
04-12-2000, 02:31 PM
Thanks, Billdo--you're not as lazy as I am. (I hate research.) I came across the case I referred to in the early '90s, before the ones you cite were decided. I was thinking it was a Court of Appeals case, but since the issue is still being hashed out in the Appellate Division I must have been mistaken.

(For those who don't know, the New York State court system is named to confuse people. The NY Supreme Court is the trial level; the highest court is the Court of Appeals. I don't live there, so I disclaim all responsibilty for this.)

As I recall, the situation was such that the panel wanted to find a way to give the widow the estate--holding that a common law marriage was established in Pennsylvania was their vehicle for this. It seems to me that the couple had often visited PA--it may have been seen as a cumulative thing.

At any rate, it's probably better to be sure. If you don't intend to get married to the person, don't play games about it. If you do intend to marry him/her, do it the old-fashioned way--go to Vegas and have an Elvis impersonator tie the knot for you.

MysterEcks
04-12-2000, 02:40 PM
Thanks, Billdo--you're not as lazy as I am. (I hate research.) I came across the case I referred to in the early '90s, before the ones you cite were decided. I was thinking it was a Court of Appeals case, but since the issue is still being hashed out in the Appellate Division I must have been mistaken.

(For those who don't know, the New York State court system is named to confuse people. The NY Supreme Court is the trial level; the highest court is the Court of Appeals. I don't live there, so I disclaim all responsibilty for this.)

As I recall, the situation was such that the panel wanted to find a way to give the widow the estate--holding that a common law marriage was established in Pennsylvania was their vehicle for this. It seems to me that the couple had often visited PA--it may have been seen as a cumulative thing.

At any rate, it's probably better to be sure. If you don't intend to get married to the person, don't play games about it. If you do intend to marry him/her, do it the old-fashioned way--go to Vegas and have an Elvis impersonator tie the knot for you.

MysterEcks
04-12-2000, 02:51 PM
Thanks, Billdo--you're not as lazy as I am. (I hate research.) I came across the case I referred to in the early '90s, before the ones you cite were decided. I was thinking it was a Court of Appeals case, but since the issue is still being hashed out in the Appellate Division I must have been mistaken.

(For those who don't know, the New York State court system is named to confuse people. The NY Supreme Court is the trial level; the highest court is the Court of Appeals. I don't live there, so I disclaim all responsibilty for this.)

As I recall, the situation was such that the panel wanted to find a way to give the widow the estate--holding that a common law marriage was established in Pennsylvania was their vehicle for this. It seems to me that the couple had often visited PA--it may have been seen as a cumulative thing.

At any rate, it's probably better to be sure. If you don't intend to get married to the person, don't play games about it. If you do intend to marry him/her, do it the old-fashioned way--go to Vegas and have an Elvis impersonator tie the knot for you.

MysterEcks
04-12-2000, 03:00 PM
Oops...I apologize for the multiple postings. No, I don't think my thoughts are so deep you should read them three times--the response wasn't going through, or so I thought.

I plead ignorance, and throw myself on the mercy of the court....

Eve
04-12-2000, 03:36 PM
Just looked up your profile, Bildo: a New York lawyer? Woo-hoo! Bring on the cohabiting, won't my Mom be happy!

Hmmm . . . I used to watch Perry Mason and L.A. Law, and I don't recall THEM spending their whole workday futzing around on message boards . . . Lionel Hutz, yeah . . .

salinqmind
04-12-2000, 07:37 PM
A common law marriage is what it's called when a guy just doesn't want to marry his girlfriend. It sounds a little bit legal, a little bit nicer than "I'm-good-enough-to-use-and-screw-but-
not-good-enough-to-become-a-real-wife".

Billdo
04-12-2000, 08:36 PM
Originally posted by salinqmind:
A common law marriage is what it's called when a guy just doesn't want to marry his girlfriend. It sounds a little bit legal, a little bit nicer than "I'm-good-enough-to-use-and-screw-but-
not-good-enough-to-become-a-real-wife".

No. No, No, No. No! A thousand times NO.

A common-law marriage is a marriage. Where recognized, it is a marriage just like a marriage solemnized in a religious or civil ceremony. It has all of the legal rights and obligations of any other marriage.

Where a party becomes married under the common law in a jurisdiction that recognizes such marriages, they are considered married in all states, even those that don't recognize common-law marriages. This was discussed above in regards to couples that lived together in New York (which does not recognize common-law marriages) but travelled briefly to Pensylvania (which does). In some cases, the courts have found that couples became married (in a common-law marriage) during their short stays in Pensylvania, and were thus recognized as married in New York.

What you're thinking of is when a member of a cohabitiating couple is sometimes improperly described (usually by the news media) as a "common-law wife" or husband. This is generally in jurisdictions that do not recognize common-law marriages. Using this description is simply wrong.

In my opinion, the term, when used way, is often used as a subtle form of racial denigration. Inevitably, the news media will use it in a report like: "Leroy was arrested today in his home in the heart of the black ghetto. As he was led off in handcuffs, his common-law wife, Thelma, carrying two of her seven welfare babies, was left on the stoop of their dilapadated house in tears." Used this way, it subtly points shows that Leroy and Thelma were not married or just living together, but rather were trying to put something over on someone in a way that shows lesser morals or regard for the laws than the middle class viewers the news show is aimed at. For instance, the guy with Jackie Onassis when she died was always described as her companion, or something like that, rather than something as low class as common-law husband.

Danielinthewolvesden
04-12-2000, 11:49 PM
As a Tax expert, I can say, even if you do qualify for a "common law Marriage", as long as you don't do joint checking or property ownership, the IRS will likely "not ask", and you can happily go on filing "single". On the other hand, if you have filed "joint" in the past, and get divorced or whatever, but still live together & split expenses/comingle funds, the Service CAN make you file "separate" or "Joint".

Otto
04-13-2000, 12:55 AM
As a Tax expert, I can say, even if you do qualify for a "common law Marriage", as long as you don't do joint checking or property ownership, the IRS will likely "not ask", and you can happily go on filing "single".

Is there any subject of which Danny is not the master?

One of the qualifications in every jurisdiction which recognizes common-law marriage is that the partners to the marriage hold themselves out as husband and wife. Filing a "single" tax return does not meet that qualification. And assuming that at the state level the C-L marriage is recognized despite filing single returns, what you have suggested here is a fraud upon the US government which, I believe, is a felony. I hope that, should you actually work preparing taxes for clients, you do not recommend defrauding the government on a regular basis.

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