Back in the early days of our country, when justices of the peace and clergy were harder to find and the population more spread out, there arose the concept of a "common law" marriage. The basic idea was that if a man and a woman held themselves out to the community as married, and considered themselves to be husband and wife in all their dealings with the public and themselves, then the law would recognize them as such.
At the present time, only about a dozen states still recognize a common law marriage formed under their own laws. However, under the U.S. Constitution's "full faith and credit" provision, a common law marriage valid in any one of these dozen states will be recognized as a legal marriage in all of the other states.
Unfortunately, because there is no piece of paper to point to, whether a couple will be recognized as married for purposes of state law (and hence federal law, which follows state law on this determination) is a facts and circumstances test.
Here are some of the factors that judges have looked at in making a determination that a couple were married at common law:
Here are some factors that weighed against a couple being considered in a common law marriage:
Because tax returns are signed under the penalties of perjury, they are particularly persuasive to a court in making this determination.
Why is this important? There are many legal consequences, rights, and responsibilities that depend on a determination of marital status. For example:
Sometimes it's actually better not to be determined to be married. For example, a healthy spouse's own assets must be "spent down" on a disabled spouse residing in a nursing home, before Medicaid coverage of the nursing home costs will be allowed. If the couple is not married, then only the nursing home partner's assets are counted, protecting an unlimited amount of assets of the healthy partner.
As you can see, important monetary and other benefits turn on the legal determination of whether there was or was not a common law marriage. In most cases there are benefits to the spouse; in some cases there are disadvantages. In any case, this should be thought through by the couple so that they do not get caught unaware! If in doubt, the couple should go downtown and sign that little piece of paper indicating they are officially married. That would end all questions!
K. Gabriel Heiser is an attorney with over 25 years experience in elder law and estate planning. Heiser is the author of “How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets,” an annually updated practical guide for the layperson. For more information about this book, visit Medicaid Secrets.
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