Common Law Marriage Defined
Common law marriage is often thought of as another word for, simply, marriage. And, while states used to have a common law marriage, in which courts would allow them to establish a marital relationship without a license or formal ceremony, that is no longer the case. Few states continue to recognize common law marriages: Colorado, Iowa, Montana, New Hampshire, South Carolina, Texas, and Utah all still do.
Even so, many people assume that if they have lived together with another person for a certain amount of time, that constitutes a common law marriage . Others believe that if they refer to each other as "husband" and/or "wife," they have established a common law marriage. In fact, a couple needs to meet very specific criteria for their relationship to be considered a common law marriage, and, even then, the relationship is recognized as a valid marriage in just those seven states, which means that it can be difficult for a couple with a common law marriage to establish their marital rights in other states, should they move there, or at the federal level, since common law marriage is not recognized in those situations.
Common Law Marriage in California: Does It Really Exist?
Common law marriage does not exist in California. That’s prolly gonna be a bit of a shock to some folks out there given how many people live together here in California and in other states with either a "common law spouse" or one they’re allegedly "going to marry if the time is right." Well, the fact remains that common law marriage does not exist in California, and if you’re living together with these types of arrangements in mind, you’ve just wasted yourself a boatload of money over the years in taxes, insurance, medical coverage and other legal financial issues that come along with being married. The fact that your relationship was/ is entered into is not what makes you married in California, it’s the document you signed or the ceremony you partook in that makes you legally married.
The following alternatives do exist as substitutes that, to all appearances, may look like a marriage to someone looking from the outside of the relationship. To be bluntly honest with you, none of these hold up to the full rights and benefits as a license ceremonial marriage.
Now, your business, and even your accountant, might try to use one of these along the way to make it look like you are married so that you both can file some sort of joint return — but you don’t want to do that. At least you don’t want to do that unless you’re either ready to get married today or if you’re in the state of Nevada. Or, the paperwork that you’ve completed to make yourself seem married is beneficial in some other broader legal case which means that the whole truth might not be necessary.
The bottom line truth is that California does not have any sort of loophole that counts as common law marriage. If you want to legally joint yourself through marriage, then you have two choices under the law: 1) go to get a marriage license and pay your fees and follow the procedure according to California law to get yourself legally married; 2) get yourself out of California to travel to another state where common law marriage does exist for real, to legalize yourself through marriage there.
Common Law Marriage After Six Years: What It Means
Many people in California believe that if they live together for a certain number of years, then they are married. If this phrase "common law marriage" is used, it’s typically in conjunction with an agreed upon number of years together. The actual fact is that in California, there is no time requirement for a couple to be legally married – so a couple can never achieve legal marital status without the benefit of a marriage certificate in this state (unless exceptions apply such as for military personnel – in which case special analysis would be required).
Alternatives to Common Law Marriage in California
California does provide two legal alternatives to Common Law marriage that can provide similar benefits to those accorded to married couples, so long as the partners live together within the State of California. A Domestic Partnership is a legal contract that confers upon the couple the rights and benefits recognized by California Family Code sections 298 – 2974, and certain benefits under the Family Code applicable to legal spouses. Occasional domestic partners may want to consider executing a Domestic Partnership Agreement, which addresses such issues as the distribution of your property and financial support in the event of a separation. Common law rules generally do not apply to domestic partners. But there are some special rules. For example, domestic partners may have a lawful claim for spousal support. A Cohabitation Agreement may be entered into by a person who is not married and one of the parties has been legally married/registered to someone else. An unmarried couple may agree to divide property , or pay support to one another in the event that they become legally separated or live separately. In the event the unmarried couple separates or lives separately without an agreement to address the dissipation of property and any type of spousal support, the courts may treat the relationship as if it were a marriage even though the parties simply cohabitated. In addition, even though the parties have executed a Cohabitation Agreement, there are some exceptions to the enforceability of each provision contained therein. For example, all statutes of limitation apply equally to a married person and an unmarried person, so the statute of limitations shortening the time period in which to file a lawsuit regarding support, property division or other claims, applies equally to a married person as it does to an unmarried person. Domestic partners and unmarried people who cohabitate are afforded all of the rights to assert or challenge claims with the Family Law Courts as if the couple were a legally married spouse and a legally divorced spouse.
Problems for Unmarried Couples in California
In California, without marriage, your property rights are very different than if you were married or in a Registered Domestic Partnership. There is no presumption of community property between you and your unmarried cohabitant. If you cohabit with someone for a lengthy period, and you purchase property together, the presumption will be that the property is owned 50/50. The presumption can be overcome if you can show by clear and convincing evidence that your cohabitant had the present intent to make a gift of his or her separate property in the property to you, or that the property was purchased with a gift or inheritance, or purchased with the earnings or savings of their separate property. If you and your cohabitant purchased property during a lengthy relationship, and your cohabitant is able to rebut the presumed 50/50 ownership of the property, your cohabitant may receive the entirety of the property if they can show that they purchased it with their separate property.
If you have children with your cohabitant, you have the right to ask for child support for the benefit of your children, but you do not have a right to ask for spousal support for yourself if you separate. You have the right to file for custody and visitation in the Family law Court if your cohabitant refuses to allow you to visit your children.
If your relationship ends, when you are not married, whether you are able to recover half of the money that you contributed to your ex’s home or his or her bank account depends on whether you can prove that he or she intended to gift it to you, or whether your contributions were gifts or purchases of that property with your separate funds.
As there is no presumption that property is owned equally, you will have to rely on your records to prove that you bought the property or paid the bills with your own money or that you made a direct gift to your cohabitant. As you cannot file a family law case to obtain a division of property or ask for spousal support for yourself, you are relegated to a civil lawsuit. If you cannot afford counsel on an hourly basis, most attorneys will not take your case. Litigation is lengthy and expensive. As there is no presumption in your favor, the litigations and court appearances will be in the thousands of dollars, as you not only have to prove the amounts of the bills you paid for him/her, but you have to prove that you had an agreement with your ex that you would be paid back the amounts that you paid for him or rents that you paid for him, and bills that you paid on behalf of him.
The problems that arise depend on the parties involved.
Getting Your Rights Without Common Law Marriage
In the absence of common law marriage in California, unmarried individuals must be vigilant to protect their legal rights. Doing so is especially important when sexual relationships are not the sole way in which a person or couple builds assets together. Many individuals who are not legally married live with one another as co-owners of real estate and joint bank accounts. There is no preordained scheme for dividing those assets if the couple does not continue together.
Asset ownership can be a significant area of conflict between unmarried couples when they separate. One or the other of them simply moves out of the property, leaving the other presumably free to sell or rent the property and divide the proceeds. However , a court may be reluctant to allow the property to be divided fairly if it was intended to be the home of both individuals.
Putting an agreement in place helps to ensure that everyone’s expectations are met if the relationship ends. A cohabitation agreement can specify how property will be handled if the individuals separate, just as a marriage contract does. A cohabitation agreement can be separated into independent sections, with separate provisions for property, child custody and visitation and support.
An asset protection plan should include property owned prior to the relationship as well as property acquired during the relationship. If there are children of the relationship, they may need to be addressed in the plan. Child support and visitation are only two of the main issues for these agreements.