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How to avoid becoming (unwittingly) common-law married

I get frequent calls or emails inquiring how long one can live with a romantic companion before one is common-law married. Often these folks believe there is a set time period (typically seven or ten years) after which cohabitation is presumed to become a common-law marriage. These folks are mistaken. While cohabitation (living together) is a requirement for becoming married at common law, the time period can be as short as a day. Further one can cohabit for decades without becoming common-law married. The determining factor isn’t the length of the cohabitation but the manner in which the couple holds themselves out. The following are suggestions for preventing an intended cohabitation from turning into an unwitting common-law marriage:

• Don’t file joint taxes returns. This is a biggie. It’s pretty hard to claim one didn’t intend to be married when one would be guilty of tax fraud by making that claim.
• Don’t list the cohabitant as a “spouse” for purpose of employee benefits. Another biggie. Defrauding an employer isn’t as bad as defrauding the government but it still is hard to explain away. I have had clients unwittingly married because they wanted to put their baby-mama on their employer’s health insurance.
• Don’t file any official paperwork in which the cohabitant is listed as a spouse. While tax returns and employee benefits are the two most common ways folks list a cohabitant as a spouse, filing any such documents listing the other as a spouse or claiming spousal benefits is an excellent way to end up common-law married.
• Don’t introduce the cohabitant as a one’s spouse, husband or wife. The third big no-no. It’s pretty hard to claim that one didn’t hold oneself out as married when one introduces that person as your spouse. Introduce the cohabitant as a cohabitant, boyfriend/girlfriend, roommate, paramour, concubine, my-old-lady/mu-old-man, or friend-with-benefits if labels are needed. Just avoid terms that imply marriage.
• Don’t hold the cohabitant out as one’s spouse or hold oneself out as being married to the cohabitant. The final big no-no. Obviously it is hard to deny one intended to be married if one is holding oneself out as married. I have seen cases in which folks issued anniversary announcements in a local newspaper and in which one party later claimed he lacked an intention to marry. The family court did not find him convincing.
• Correct one’s cohabitant if he or she claims to be one’s spouse. Allowing other to believe one is married when one intends to merely cohabit can create a “reputation” of marriage. Failing to correct one’s cohabitant on the claim that one is married allows others to believe one is married. It further allows the cohabitant to believe one intends to be married.
• Correct others when they assume the cohabitant is one’s spouse. Again, allowing others to believe one is married when one intends to merely cohabit can create a “reputation” of marriage.
• Don’t title property or enter debts jointly using the same last name [this assumes the cohabitants don’t already have the same last name]. It is perfectly fine to have joint assets or debts with a cohabitant (although division of these assets and debts later on can cause problems). However, when one titles these assets or debts in the same last name it demonstrates an intention to act as spouses.
• Don’t take on the other’s last name (if one is female) or allow the other to take on one’s last name (if one is male). Checking into a hotel as Mr. & Mrs. Smith is strong evidence of an intent to be married if the man’s last name is Smith and strong evidence of a lack of intent to be married if the man’s last name is Brown.

Following the above advice is not a guarantee that cohabitation will not be misconstrued as common-law marriage. However, it greatly reduces the likelihood of that happening.

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  • Greg, A good post. love the hotel example. My favorite law school course was domestic relations taught by Professor Dreher. My favorite case in that course was a Virginia case. A UVa student brought his girlfriend to Charlottesville. They checked into a hotel as husband and wife. Later he dumped her. Hell hath no fury like a woman scorned.” She sued for divorce. He defended on the ground there was marriage.

    The Virginia Court reasoned that the strongest presumption in law is the presumption of innocence. Therefore, an act should be given an innocent interpretation if possible. Checking into a motel under a false names was a crime but finding a common law marriage provided an innocent interpretation. The girl won.

  • This is a great explanation. Ryan and I lived together for 6 years before getting engaged and 8 before getting married. I was covered on his health insurance (as a domestic partner since his company would provide coverage for non-married couples with that designation), but I had to stop an insurance agent from listing me as his spouse when he bought a life insurance policy with me as the beneficiary.

    Sometimes third parties (and their laziness or unwillingness to find an appropriate label), combined with the couple’s hesitance to speak up, are to blame.

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