I've seen posts on Facebook and TRP lately on the issue of common law marriage and the misconceptions behind them and I want them cleared up so hapless men don't fall into a very dangerous trap. The two biggest misconceptions I see are:

  • you have to cohabitate for a certain amount of time (varying between 2-8 years) to be married under common law, and
  • you can have a wedding ceremony and have your cake too.

At best either one of these are irresponsible things for a man in the modern sexual climate to do, but nobody seems to be aware of the legal repercussions and the worse-case scenario. It's small comfort that most women don't know either, because the family court lawyers your future non-wife will go to to for a non-divorce are very much aware of what "common law marriage" really is.

Note that I am not a lawyer, my only law training involves reading Grisham books and I thought The Firm was a shitty movie. Always consult the professionals when it comes to law.

What is NOT common law marriage?

Common law marriage in the United States is not "cohabitation" or cohabitating couples. Common Law Marriage is a very narrow legal definition and isn't applied in broad strokes to someone having a roommate of the opposite sex for a couple of years. The State doesn't magically know if you're a couple just because you live at the same address and doesn't even want the legal hassle of finding out. The default for all couples is unmarried unless said otherwise. Do not listen to anyone saying all you need to do is live together to be a married couple. If they're a lawyer report them to the bar.

What IS common law marriage?

Common law marriage is a form of marriage that is exactly the same as any other marriage; the "how" is the only difference (a lack of a wedding ceremony or legal paperwork filed are the biggest). There are only 9 states that grant it (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah, and Texas). If you live in one of these check the laws because they vary, but in general require three things:

  • intent to be married
  • cohabitation
  • presenting yourself as a married couple.

In other words: if you cohabitate as a couple and have that big wedding ceremony your plate-turned-LTR wanted (you dumbass) you have fulfilled all three requirements to be considered common law married. If you two split up she can go to a lawyer and put together a case for a judge and initiate a divorce, even though there was never a certificate of marriage issued. Save some lube from the wedding night for your day in family court.

What does this mean for me?

  • If you're living with your woman and you haven't told people you're husband and wife you're fine. You aren't considered a married couple.
  • If you live in one of the above states you should look abroad for your wedding location if you plan on having a non-binding marriage ceremony. Edit: /u/nemaxofredpill has pointed out that many states that don't issue common law marriages will still recognize them from other states that do. You also cannot just trust the law as court cases have upheld CLM against what is on the books If in doubt, always check with a lawyer.
  • Don't file any paperwork with any government entity including the IRS. Sign a pre-nup if you are going to file that marriage license with the state.
  • Get a lawyer when dealing with legal issues of this capacity.
  • If your future wife won't sign a prenup that's a good sign you should blow your load up her nose then dump her.

Edits:

  • /u/RBuddDwyer brought up a good point: watch out for something called the putative spouse / putative father doctrine.

A putative spouse is in a nutshell is a way of validating a legally invalid marriage if one of the parties were lead to believe they were married but were never legally married, such as my wedding day example. Say you promised your fiancee that you would go and file a marriage license at the courthouse and be legally married, so you both sign the paperwork and you head out and go have a party with a paper shredder instead and never file it. Even if you didn't "hold out"/tell people you were married and nobody knows you could be held in court as a putative spouse, because you promised that you were going to be married to your (now very) significant other. Wikipedia says it's been enacted in California, Colorado, Illinois, Louisiana, Minnesota and Montana. Case law provides for putative spouse rights in Nebraska, Washington state, Nevada, Texas and Louisiana (my interpretation of this is that there is no law on the books but courts have ruled in favor, possibly citing other court cases around the country).

The same thing applies to fatherhood. If you promised to raise a child a woman is pregnant with and accept your role as betabux bitch, you are stuck with supporting the child if it's taken to court, even if you can later prove you aren't the father. I could see this swinging the other way if the mother promises that the husband is the father, and if he wants custody he could sue under putative father doctrine. For futher boring reading here is a PDF of the Marriage and Divorce Act drafted by the National Conference of commissioners on Uniform State Laws. You can see what states it's been enacted in here.