Cohabitation: The Law in your State Makes a Difference in Common Law Marriage

When a common law married couple relocates to a state that does not inherently recognize common law marriage for its residents, they enter treacherous and muddy waters should they choose to terminate their relationship. Perhaps no area of family law varies as much from one state to the next.

When a common law marriage recognized in one state comes apart in another, it is wise to seek expert legal advice to determine how alimony and/or alternative financial relief may be applied, if at all.

The office for Colorado Attorney General John W. Suthers writes, “A common law marriage in Colorado is valid for all purposes, the same as a ceremonial marriage. It can be terminated only by death or divorce.” In Colorado, the common law elements of a valid marriage include the following: They can legally marry if they want, they tell others they’re married and others think of them as married.

Ten states and the District of Columbia recognize common law marriages. Five other states recognize common law marriages established before a cut off date with two other states only recognizing it for specific legal issues.

Brian McFadden-DiNicola, an attorney with Gomperts & Braun in Springfield, New Jersey, noted that common law marriage is not recognized in New Jersey “unless the parties were in a common law marriage prior to 1939. Our state Supreme Court ruled in 1955 that all marriages entered into after Dec. 1, 1939, without full compliance with the statute, to be absolutely void.”

However, many states adhere to the full faith and credit rule of the U.S. Constitution that allows for the recognition of a marriage under the laws of another state as explained by Kelly Chang Rickert, a family law attorney in Los Angeles. “Although California does not recognize common law marriage in its state, if you were previously ‘married’ through common law in another state and later move to California, California will recognize your previous marriage.”

“You must establish that your state acknowledges common law marriage, and produce a valid marriage certificate.” Chang Rickert says. “Basically, if the other party challenges the divorce, you may have to make a motion for a separate hearing for the judgeto determine whether there was a valid marriage in another state. Once this has been adjudged, the matter will continue as a regular divorce.”

Chang Rickert adds, “There must be an evidentiary hearing which involves hearing testimony, showing documents, prior to the actual dissolution of a marriage case.” Factors taken into account to substantiate a common law marriage from another state in a state not recognizing common law marriages within its borders can include:

  • Tax returns filed jointly as married
    Shared financial accounts such as loans, credit cards, and bank accounts
  • Affidavits from residents of the common law state attesting to the couple as representing themselves as being married
  • Documentation of showing the wife taking the last name of the husband
  • Cohabitation agreement
  • Tax returns filed jointly as married
  • Shared financial accounts such as loans, credit cards, and bank accounts
  • Affidavits from residents of the common law state attesting to the couple as representing themselves as being married
  • Documentation of showing the wife taking the last name of the husband
  • Cohabitation agreement

A common law marriage will generally be held “to be a valid marriage in a non common law state if the parties met the requirements of the common law marriage state. The burden is going to be on the person who wants to assert that there was a common law marriage in place,” explains Goldie Schon, an attorney at Nachshin & Weston of Los Angeles.

Contrarily, in New Jersey, the view of alimony falls outside the parameters of family law, according to McFadden-DiNicola. “Prepare yourself for some difficult hurdles based on the case law. You are going to have to bring either a palimony claim or a claim for quasi-contractual relief, meaning you are going to have to ask the court to provide you with equitable relief based on contract principles, not on statutory principles of equitable distribution, alimony, etc.”

There is, depending upon the state, another remedy, notes Chang Rickert. “Although California does not recognize common law marriage for purposes of awarding spousal support, there is a creature called palimony, which is support awarded on the basis of a contract. Palimony is not an issue of family law but rather contractual law, and unlike alimony being paid monthly, it is awarded as a lump sum in a civil judgment.”

Schon adds, “If the family law court decided that there was no legal marriage, then the only option is a palimony suit.”The action of palimony is a civil action recognized by an estimated 30 states in the view of Cary W.Goldstein, a Beverly Hills, California attorney. “It is a breach of contract matter” that varies between states, he says. “Texas, for instance, requires the agreement to be in writing.”

In states that recognize palimony, there is variance in the factors that are taken into consideration by the court and the weight that these factors are given:

  •  Cohabitation
  • Length of the relationship
  • Commitment between partners that one would financially provide for the other for life
  • Promises between partners that can be proven
  • Written financial agreements
  • Ability of the plaintiff to support themselves financially
  • Giving up a career to provide services such as care of the home or children
  • Sacrifices made by one partner to put the other partner through college
  • Disparity in income

The complexity, variance in laws between states and intertwining of alimony for a common law marriage or palimony necessitates that you consult with a family law attorney having deep knowledge in these specializations should the relationship end in a non-common law state. Here are some tips from attorneys to help you determine the best path forward.

1. Gather documentation.

Chang Rickert suggests, “Keep all documents supporting your common law marriage in a safe place.”

2. Register your common law marriage.

Schon stresses, “If a couple fulfilled the requirements of a common law marriage where common law marriage were recognized and now the couple resides in a state that does not recognize couple law marriage, the first thing to do is register the marriage in the county they current reside.”

3. Keep track of promises of financial care.

McFadden-DiNicola advises, “This is a very narrow area of the law, at least in New Jersey. To succeed on palimony in New Jersey, you need to have a marital-type relationship, a promise to take care of the person for life, consideration for the promise and cohabitation.” [Note: The requirement for cohabitation is currently under review by the New Jersey State Supreme Court.]

4. Know what you’ve given up.

Chang Rickert adds, “Palimony is based on a promise, so there must be consideration. If you can show detriment such as giving up of a career, it will help you.” McFadden-DiNicola cautions, “Clients, and attorneys representing these clients, really need to think expansively about their claims for relief in order to have the courts provide them with the equitable result they deserve.

5. Make sure the fight is worth it.

Schon asserts, “Such cases are very expensive to litigate and only get more expensive when proceeding to a palimony suit.”