Common Law Marriage

Why do so many misunderstandings about common law marriage persist? In an age where more couples say “I don't” than “I do” to traditional marriage, here are some points to consider.

From Common to Uncommon

A tradition that traces its roots to Medieval Europe, common law marriage was once commonplace in most of the United States, mainly due to lack of easy access to courts and clergy in newly settled and rural areas. Legal requirements for common law marriage varied slightly from state to state, but the core elements were (and remain) the same. In addition to meeting all state requirements for marriage, such as being single and of legal age, a common law marriage is viewed to be in place if couples:

• agree that they intend to be married;
• live together for a significant period of time (but not specifically seven years); and
• “hold themselves out” to their community as married — by using the same last name and referring to one another as “my husband” or “my wife,” for example.

Once established, common law marriage is considered the legal equivalent to marriage, with all the same legal rights and obligations that apply to officially married couples, including the need to divorce, should the union end.

Around the turn of the 20th century, as transportation improved, population centers grew and concerns about protecting private property rights and access to government benefits also increased, support for these informal unions gradually waned. However, they didn't disappear altogether. Today, couples can still enter into valid common law marriages in Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, Texas, Utah and the District of Columbia. Alabama will drop from this list this year when it discontinues common law marriage. In New Hampshire, common law marriage is recognized for inheritance purposes only.

Common Law Marriage Ends in New Jersey

In New Jersey, the State Legislature unequivocally ended the formation of sui juris marriages in 1939 when it passed a statute providing, in part, that:

[N]o marriage contracted on and after December first, nineteen hundred and thirty-nine, shall be valid unless the contracting parties shall have obtained a marriage license … and unless, also, the marriage, after license duly issued therefor, shall have been performed by or before any person, religious society, institution or organization authorized … to solemnize marriages….

N.J.S.A. 37:1-10, amended by L.1939, c. 227, p. 624, s. 1, eff. July 18, 1939.

In Dacunzo v. Edgye, 19 N.J. 443 (1955), the New Jersey Supreme Court declined to carve out an exception to the common law marriage ban for the removal of an impediment to a void marriage. Dacunzo was an annulment case where the wife had concealed a prior marriage and divorce from her current husband, and her divorce was not finalized until shortly after the second marriage. The court clarified in its ruling that the language of the statute banning common law marriage was intentionally “broad and sweeping.”

Recognition for Common Law Marriages Formed Out of State

In contrast to recent divisiveness by states surrounding recognition of same-sex marriage prior to marriage equality, states have generally accepted that under the “full faith and credit” clause of the U.S. Constitution, a common law marriage validly formed in one state is valid throughout the United States. This means that, in theory, if a couple enters into a common law marriage in Colorado, and then moves to New Jersey, they should be able to have this marriage recognized as legitimate.

Be forewarned that proving the existence of a common law marriage is often difficult. Disputes over the existence of the marriage can become “he said/she said” contests, and court decisions focus on small details, such as whether the parties wore rings, whether they kept their finances separate, and whether their partner's relatives addressed them as “in-laws.” If one partner dies without a will, leaving the other to testify without rebuttal in a claim for intestate rights, the potential for abuse is compounded.

In one recent New Jersey case, Kehoe v. Ultralum Enterprises, A-4531-12T4 (App. Div. March 18, 2014), a Point Pleasant, NJ, woman filed a spousal dependency claim in a workers' comp case after her partner of eight years died in a workplace accident. In court papers, Bobbie Kehoe described the couple's common law marriage as based on a two-week visit to Texas in 2004 in which she and her husband “represented to others that they were husband and wife.” Would this be viewed the same as going off to Las Vegas for a quickie wedding? Not in this case: The court dismissed Kehoe's evidence of marriage as lacking merit, and ultimately rejected her claim.

Rights in Cohabitation Relationships

Couples who marry legally obtain tax breaks; inheritance rights; various spousal benefits, including health insurance, and postdivorce marital property; and spousal support rights. Couples in New Jersey who falsely believe they are in a common law marriage and are thus entitled to some or all of such rights may be placing themselves at great risk for financial detriment, especially if one of them is a dependent partner in a long-term relationship. Given the increasing numbers of couples favoring living together over marriage, there are some who advocate granting limited marital rights to these cohabiting partners.

Looking to other states — Kansas, for example — courts have the authority to equitably divide property that unmarried cohabitants accumulate while living together. Couples in Washington State who hold themselves out to the community as committed partners and live together for a substantial period of time (generally at least two to three years), are presumed to jointly own property they acquire during the relationship. Several European countries, including Sweden, Norway, Denmark and Scotland, also grant unmarried cohabiting couples limited marital rights.

Available Now: Flexible and Clear Alternatives

Perhaps future changes will offer some of these protections to couples in New Jersey. For now, the state provides two options for couples who do not want traditional marriage, but who do want some its protections. The first is cohabitation with a cohabitation agreement. The second is marriage with a prenuptial agreement.

New Jersey courts once recognized cohabitation agreements even if they were not reduced to writing. As of 2010, however, the New Jersey statute of frauds requires all so-called “palimony” contracts to be put into writing after each party receives independent advice from an attorney (N.J.S.A. 25:1-5h). This change was a direct reaction to the difficulty of proving promises made in the context of cohabitation. In Maeker v. Ross, 430 N.J. Super. 79 (App. Div. 2013), the New Jersey Supreme Court issued an opinion clarifying that New Jersey's palimony statute does not void oral agreements made prior to 2010. The outcome of Maeker, therefore, makes it possible to file a palimony claim based upon a promise to support an unmarried partner made prior to 2010 that is not in writing. A more recent case that questioned the constitutionality of New Jersey's palimony statute, Lee v. Kim, No. 15-2602 (3d Cir. Jun. 20, 2016), was rejected.

As another option, prenuptial agreements are a popular choice for couples who wish to marry, but have children from prior marriages, and/or substantial discrepancies in financial means. Prenuptial agreements must be fully voluntary and require mutual and full disclosure of assets, as well as independent legal counsel for each prospective spouse. Agreements must be put in writing and signed, and must be dated long enough before the marriage so as to permit each spouse sufficient time to consider all terms. (N.J.S.A 37:2-31 et seq.)

Conclusion

As we move into this new era of how people choose to define their long-term, committed relationships, it makes sense that the law should continue to evolve to offer rights and protections for individuals in these situations. For now, dispelling myths around common law marriage is vital. However, so is starting a conversation about what protections marriage and cohabitation should offer, and how couples can decide which relationship status is best for them.

*****
Bari Z. Weinberger is the owner and managing partner of Weinberger Law Group, with offices throughout New Jersey, specializing in divorce and family law. She is certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney. This article also appeared in the New Jersey Law Journal, an ALM sibling publication of this newsletter.

Wedding bells don't ring as frequently as they used to, according to U.S. Census data that shows the number of couples opting to cohabit rather than marry has more than doubled since the 1990s. Among these modern live-in couples who eschew formal marriage, however, there can be confusion about the legal status of their relationship. Most notably: Does living together as committed partners … buying a home together, and perhaps even raising children together … somehow trigger the protections of common law marriage?

A recent report from National Public Radio, “No, You're Not in a Common Law Marriage After 7 Years Together,” delved into the still-pervasive notion that if two partners live together for a long time — seven years, according to popular myth — they automatically enter into the centuries-old bonds of informal sui juris marriage, or “common law” marriage.

In a shrinking minority of states, where the formation of common law marriages is still allowed, this belief may contain a kernel of truth. In New Jersey, where the practice of common law marriage was statutorily ended in 1939, the treatment of common law marriage is murky. You can't start one in the Garden State any longer, but if you are part of a couple that formed a common law marriage in a state where it is still legal to do so, your marriage could still be recognized in New Jersey, as long as you are able to prove its validity.

Why do so many misunderstandings about common law marriage persist? In an age where more couples say “I don't” than “I do” to traditional marriage, here are some points to consider.

From Common to Uncommon

A tradition that traces its roots to Medieval Europe, common law marriage was once commonplace in most of the United States, mainly due to lack of easy access to courts and clergy in newly settled and rural areas. Legal requirements for common law marriage varied slightly from state to state, but the core elements were (and remain) the same. In addition to meeting all state requirements for marriage, such as being single and of legal age, a common law marriage is viewed to be in place if couples:

• agree that they intend to be married;
• live together for a significant period of time (but not specifically seven years); and
• “hold themselves out” to their community as married — by using the same last name and referring to one another as “my husband” or “my wife,” for example.

Once established, common law marriage is considered the legal equivalent to marriage, with all the same legal rights and obligations that apply to officially married couples, including the need to divorce, should the union end.

Around the turn of the 20th century, as transportation improved, population centers grew and concerns about protecting private property rights and access to government benefits also increased, support for these informal unions gradually waned. However, they didn't disappear altogether. Today, couples can still enter into valid common law marriages in Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, Texas, Utah and the District of Columbia. Alabama will drop from this list this year when it discontinues common law marriage. In New Hampshire, common law marriage is recognized for inheritance purposes only.

Common Law Marriage Ends in New Jersey

In New Jersey, the State Legislature unequivocally ended the formation of sui juris marriages in 1939 when it passed a statute providing, in part, that:

[N]o marriage contracted on and after December first, nineteen hundred and thirty-nine, shall be valid unless the contracting parties shall have obtained a marriage license … and unless, also, the marriage, after license duly issued therefor, shall have been performed by or before any person, religious society, institution or organization authorized … to solemnize marriages….

N.J.S.A. 37:1-10, amended by L.1939, c. 227, p. 624, s. 1, eff. July 18, 1939.

In Dacunzo v. Edgye , 19 N.J. 443 (1955), the New Jersey Supreme Court declined to carve out an exception to the common law marriage ban for the removal of an impediment to a void marriage. Dacunzo was an annulment case where the wife had concealed a prior marriage and divorce from her current husband, and her divorce was not finalized until shortly after the second marriage. The court clarified in its ruling that the language of the statute banning common law marriage was intentionally “broad and sweeping.”

Recognition for Common Law Marriages Formed Out of State

In contrast to recent divisiveness by states surrounding recognition of same-sex marriage prior to marriage equality, states have generally accepted that under the “full faith and credit” clause of the U.S. Constitution, a common law marriage validly formed in one state is valid throughout the United States. This means that, in theory, if a couple enters into a common law marriage in Colorado, and then moves to New Jersey, they should be able to have this marriage recognized as legitimate.

Be forewarned that proving the existence of a common law marriage is often difficult. Disputes over the existence of the marriage can become “he said/she said” contests, and court decisions focus on small details, such as whether the parties wore rings, whether they kept their finances separate, and whether their partner's relatives addressed them as “in-laws.” If one partner dies without a will, leaving the other to testify without rebuttal in a claim for intestate rights, the potential for abuse is compounded.

In one recent New Jersey case, Kehoe v. Ultralum Enterprises, A-4531-12T4 (App. Div. March 18, 2014), a Point Pleasant, NJ, woman filed a spousal dependency claim in a workers' comp case after her partner of eight years died in a workplace accident. In court papers, Bobbie Kehoe described the couple's common law marriage as based on a two-week visit to Texas in 2004 in which she and her husband “represented to others that they were husband and wife.” Would this be viewed the same as going off to Las Vegas for a quickie wedding? Not in this case: The court dismissed Kehoe's evidence of marriage as lacking merit, and ultimately rejected her claim.

Rights in Cohabitation Relationships

Couples who marry legally obtain tax breaks; inheritance rights; various spousal benefits, including health insurance, and postdivorce marital property; and spousal support rights. Couples in New Jersey who falsely believe they are in a common law marriage and are thus entitled to some or all of such rights may be placing themselves at great risk for financial detriment, especially if one of them is a dependent partner in a long-term relationship. Given the increasing numbers of couples favoring living together over marriage, there are some who advocate granting limited marital rights to these cohabiting partners.

Looking to other states — Kansas, for example — courts have the authority to equitably divide property that unmarried cohabitants accumulate while living together. Couples in Washington State who hold themselves out to the community as committed partners and live together for a substantial period of time (generally at least two to three years), are presumed to jointly own property they acquire during the relationship. Several European countries, including Sweden, Norway, Denmark and Scotland, also grant unmarried cohabiting couples limited marital rights.

Available Now: Flexible and Clear Alternatives

Perhaps future changes will offer some of these protections to couples in New Jersey. For now, the state provides two options for couples who do not want traditional marriage, but who do want some its protections. The first is cohabitation with a cohabitation agreement. The second is marriage with a prenuptial agreement.

New Jersey courts once recognized cohabitation agreements even if they were not reduced to writing. As of 2010, however, the New Jersey statute of frauds requires all so-called “palimony” contracts to be put into writing after each party receives independent advice from an attorney (N.J.S.A. 25:1-5h). This change was a direct reaction to the difficulty of proving promises made in the context of cohabitation. In Maeker v. Ross , 430 N.J. Super. 79 (App. Div. 2013), the New Jersey Supreme Court issued an opinion clarifying that New Jersey's palimony statute does not void oral agreements made prior to 2010. The outcome of Maeker, therefore, makes it possible to file a palimony claim based upon a promise to support an unmarried partner made prior to 2010 that is not in writing. A more recent case that questioned the constitutionality of New Jersey's palimony statute, Lee v. Kim, No. 15-2602 (3d Cir. Jun. 20, 2016), was rejected.

As another option, prenuptial agreements are a popular choice for couples who wish to marry, but have children from prior marriages, and/or substantial discrepancies in financial means. Prenuptial agreements must be fully voluntary and require mutual and full disclosure of assets, as well as independent legal counsel for each prospective spouse. Agreements must be put in writing and signed, and must be dated long enough before the marriage so as to permit each spouse sufficient time to consider all terms. (N.J.S.A 37:2-31 et seq.)

Conclusion

As we move into this new era of how people choose to define their long-term, committed relationships, it makes sense that the law should continue to evolve to offer rights and protections for individuals in these situations. For now, dispelling myths around common law marriage is vital. However, so is starting a conversation about what protections marriage and cohabitation should offer, and how couples can decide which relationship status is best for them.

*****
Bari Z. Weinberger is the owner and managing partner of Weinberger Law Group, with offices throughout New Jersey, specializing in divorce and family law. She is certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney. This article also appeared in the New Jersey Law Journal, an ALM sibling publication of this newsletter.