Common Knowledge
"Common-law" marriages aren't nearly as common as most
people believe. Here's what you need to know to protect your rights while you're together
-- and after you break up.
By Brad Marcoux
You're in a relationship, and for the past decade you've been living together. You share
everything: the chores, the shopping, the bills, raising your two children, walking the
dog. At parties, you introduce each other as husband and wife. The only difference between
your relationship and the Smiths' next door is that you didn't bother with the ceremony or
the marriage licence. That doesn't matter, though, because as far as you're concerned,
you're in a "common-law" relationship. If something did happen and it all ended,
you'd have the same protection under the law as the Smiths do, right? While this is what
high-profile cases and popular terms such as "palimony" have led many to
believe, no matter how sure you are about your marital standing, the law might say
otherwise.
What and Where
The concept of common-law marriage dates back hundreds of years. Originally, it was
designed to allow those without easy or convenient access to marital authorities to enjoy
the rights and benefits of a legal marriage. Even today, some states will consider a
couple to be "married" -- and to be entitled to the same legal protection as
those who follow a more traditional route -- as long as they meet certain requirements.
Generally speaking, if a couple is legally eligible (i.e. they fulfill gender and age
requirements), is cohabiting, have consecrated the relationship, hold themselves out as
husband and wife to the community, and live in a state where such relationships are
recognized (see "Uncommon Recognition,"), they are
considered to be in a common-law (or in some states, "informal") marriage.
Many states, however, don't recognize common-law marriages. "It's basically felt
that, in modern times, the formality of marriage isn't inconvenient," says Jeff
Atkinson, an adjunct professor at DePaul University College of Law in Chicago who serves
on the American Bar Association (ABA) Family Law Section Council, and is the author of The
ABA Guide to Family Law. "It's easier to administer the law if there's
documentation. Generally speaking, more than three-quarters of US states prohibit
common-law marriages. This tends to prevent unplanned loss of property or of income upon
the breakup of the relationship." Beyond misconceptions about the legality of
common-law marriages, some people believe that they're simpler to dissolve than
traditional marriages. The fact of the matter is that if you fulfill the requirements for
a common-law marriage, you're legally married, which makes the dissolution of your
relationship a divorce: the lack of a wedding won't make ending your relationship easier
or simpler.
Complexities upon Complexities
Furthering this confusion is the fact that you don't have to currently be living in a
common-law state in order to be covered. If you fulfilled all of the requirements in
Washington, DC, and then subsequently moved to and ended your relationship in Chicago, the
rules governing your marriage in The District of Columbia would be applied to your
divorce. Confused? Then just imagine the complications that can arise when such
relationships end.
Regardless of whether they sanction informal marriages, some states grant cohabiting
couples certain legal rights and privileges. In New Jersey, for example, common-law
relationships have been explicitly prohibited since the 1930s, but palimony (legally
arranged support payments between an unmarried couple) does exist on a contractual basis
-- in other words, cohabiting couples can use contract law to arrange for support in the
event that the relationship ends. Unlike some other states, New Jersey is one of the only
ones that legally recognizes the term "palimony," as well as oral contracts.
"It's possible to have a verbal contract in which you've been promised support,"
says Jeffrey Epstein, a shareholder with the New Jersey firm of Wilentz, Goldman &
Spitzer and a fellow of the American Academy of Matrimonial Lawyers (AAML), "but you
must have witnesses who know exactly what Joe promised Sally."
And if you're in a long-term relationship where there has been some sort of
"consideration" (i.e. you've paid the bills and in return your
"spouse" has minded the house and kids), palimony and property division may be
owed without any spoken or written agreement under a "quasi-contractual"
relationship. "Usually, such agreements are very time-dependent," says Epstein.
So living together for a couple of months isn't likely to make you responsible for
palimony, but the longer the time spent together, the more likely the courts will consider
your relationship a quasi-contractual one. Quasi-contractual laws are currently only
applied in opposite-sex arrangements, but according to Epstein, "it's only a matter
of time" before someone attempts to use them in a same-sex case. And written
cohabitation agreements, which can outline the division of responsibilities as well as
assets in case of a breakup, can be made between heterosexual or homosexual couples.
"But even with such flexible laws, you must remember that most judges don't give
unmarried people the same rights as married people, so you must be careful," says
Epstein.
New York's laws, by comparison, are less flexible. "If you aren't considered to be
married, then under the eyes of the law in New York you are effectively strangers,"
says Lester Wallman, a partner in the firm Wallman, Greenberg, Gasman & McKnight and
the author of Cupid, Couples & Contracts. "If you aren't husband and wife,
you must show that there was some sort of contract, either written or oral, to prove that
you made arrangements for the dissolution of the relationship. Otherwise, there is no
basis for recovery." New York does, however, recognize a "living-together
agreement" in which two people of any sex can define their responsibilities
surrounding such things as food and the lease. "It can also deal with major factors
such as a provision for support -- a fee for non-sexual services rendered," says
Wallman. "There can also be arrangements in case of the death of one of the
parties." "Quasi-contractual" agreements don't exist in New York.
Ron Rosenfeld, a fellow of the AAML and a partner in the Beverly Hills firm of
Zimmerman, Rosenfeld, Gersh & Leeds, says that California law is similar. "If
you're not married, cohabitation and consummation does not entitle you to support,"
he states. "Any remedies you seek must come from something other than marital
law." California does allow for contracts between unmarried couples who are
cohabiting, but unless you have something in writing or witnesses to testify you had a
verbal agreement, "you have no rights," says Ira Lurvey, the former chair of the
ABA Family Law Section and the California State Bar, now in private practice in Los
Angeles. "You are free to set up any kind of arrangement you'd like under contract
law, but the state would still like people to be married."
On the opposite end of the scale, there are states like Illinois. "We are
definitely in the opposite corner from states like New Jersey," says Beverly Pekala,
the principal of the law offices of Beverly Pekala and author of Don't Settle for Less.
"You can pursue recourse through real estate or contract law, but the law clearly
states that if you want the same rights as a married couple, you should get married."
According to Donald Schiller, a partner in Chicago-based Schiller, DuCanto & Fleck,
Illinois has made it very clear that quasi-contractual and verbal agreements aren't
acceptable. "You cannot get support based on cohabitation," he says. "If
you're not married, you might set up an agreement to take care of the estate, but unless
you're married, you have very little recourse for support."
Remember Retirement
Liberal as some states are, none of them allow for easy division of one of the most
valuable assets in a relationship -- the pension. Verbal, written, and quasi-contractual
agreements can only deal with the division of assets and the payment of support, so
"the pension won't qualify as an asset, and won't be equitably distributed when the
relationship fails," says Jeffrey Epstein. Even if your partner had signed an
agreement allowing you half of the pension, the complexities of pensions might not make
such a division possible. "The only way to guarantee yourself a portion of the
pension is to get married," asserts Pekala.
The complexities of pensions make division difficult, but don't think that being the
beneficiary on any retirement plan protects you if you break up, since the person who
holds the plan can change the beneficiary at any time. Again, if you want to enjoy the
rights of a spouse, you must become one.
Till Death Do Us...
Does all of this mean that despite years of time, love, and effort involved in a
relationship, you could lose everything? The short and frightening answer is
"yes." Since you aren't protected under marital laws, the dissolution of your
relationship may be no different than if you were to be simply moving out on a roommate,
and any legal action you take will have to be proven not on the grounds that the two of
you acted as a married couple, but on the basis that the two of you made an agreement
about what was going to happen when the relationship ended. And how many couples sit and
discuss who is going to get the sofa or Aunt Elva's good china when things are going well,
never mind having such a conversation in front of witnesses, or in a legal document? But
this is exactly what you must do if you hope to receive any property or support if your
relationship ends. Even if you live -- or have lived -- in a state that recognizes
common-law marriages, "that relationship must still be provable," says Lurvey.
"You must have contracts, written or oral, and if they are oral, you must have
witnesses. If it turns into a 'he says/she says,' then it will come down to who the court
believes."
Other Ways and Means
This doesn't mean that you are guaranteed to lose everything if you've been in a
long-term cohabitation relationship, however. It does mean that things are far more
complex. If, for example, you've invested in the house, but it's in your ex-partner's
name, could you lose your whole investment? "I wouldn't go that far," says
Atkinson. "You could make an equitable claim of unjustified enrichment and the court
could order payment." The same may go for the rest of the property. But don't expect
any kind of support for yourself -- no matter how much time or money you've invested.
"The fact is that you're cohabiting -- you're not married," says Rosenfeld.
"You may be entitled to some property, but you are not entitled to support."
Children muddy the waters even further, as a parent is obligated by law to help support
his or her kids in their upbringing -- whether that parent is married, single, separated,
or divorced.
The Bottom Line
If you're living in a state that doesn't permit common-law marriages and you're
concerned about protecting yourself (as you should be, no matter how good the relationship
is), the only way to do it is to create a legal contract that spells out the details of
your partnership agreement -- including who is responsible for the bills, duties around
the house, and, if the partnership ends, how house, property, and support issues will be
dealt with. You can tailor such an agreement to meet your individual concerns and needs,
but be sure to have an attorney draft your agreement and confirm that it is valid in your
state. At the very least, make sure that you have discussed such things with your partner,
and that you have witnesses who know about your arrangement. But be aware that this latter
method may be faint assurance, or none at all, if you end up in court. "You have to
show that there is a written or an oral contract that stipulates such things as property
division and support," says Wallman. "If you cannot, then there may be no basis
for recovery. And as oral contracts can be difficult to prove, the cardinal rule here, as
in anything else, is to get it in writing." Some experts put this even more strongly.
Alton L. Abramowitz, head of the matrimonial practice at Cooperman Levitt Winikoff Lester
& Newman, states that "there are technical issues involving oral contracts which
make them virtually unenforceable in the NY courts (e.g. the statute for frauds)."
With the complexities of the legal system, the importance of getting something in writing
cannot be emphasized enough.
If you're in a state where contracts based on cohabitation are not accepted (Illinois,
for instance), you may want to consider setting up a trust. "The great thing about
setting up a trust is that if it says the moon is made of green cheese, then according to
the execution of the trust, it is," says Pekala. She suggests having the monied
partner make monthly deposits into a trust account set up on mutually-agreed-upon terms.
As in a contract, you're free to make any sort of arrangements you wish, and you can set
it up at any time.
Talk It Over
All of this depends, of course, on getting agreement from your partner in setting up a
trust or signing some sort of legally-binding documentation. The problem is that some
people are cohabiting precisely because they believe it avoids all of the responsibilities
that a legally-defined relationship such as marriage entails. Convincing them that a legal
agreement or trust can not only avoid terribly complex legal battles in the future but can
also prove that they have your well-being at heart may not be an easy matter, but it's
absolutely necessary to secure your future. Contracts aren't romantic, but Ira Lurvey sums
up the situation well: "Without a contract, marital or otherwise, you have no rights.
So either get married, get a written agreement signed, or, sad as it is to say, find
someone else."
Uncommon
recognition
Since the turn of the century, there has been an increasing trend towards an explicit
statutory prohibition on common-law marriages, so that today there are only 11
jurisdictions that recognize the practice. They include: Alabama, Colorado, The District
of Columbia, Idaho, Iowa, Kansas, Rhode Island, South Carolina, Montana, Pennsylvania, and
Texas (where they're called "informal marriages"). Others, such as Georgia, have
banned the practice within the last few years. So don't let what anyone tells you, or even
this list, be a comprehensive guide: be sure to check with your local state authorities to
see if your state accepts common-law relationships. Or better yet, if you're in such a
relationship, make an appointment with a lawyer, and get an agreement in writing -- but be
sure that your counsel is fully versed in the complexities of your state. Don't be afraid
to ask questions about the likelihood of your contract standing up in court. Otherwise,
even the best drafted agreement may not help you if the relationship ends.
Common Facts
According to the US Census Bureau's Fertility and Family Statistics Branch, the number
of unmarried couple households has increased dramatically over the last 24 years. In 1970,
there were 523, 000 households in which unmarried couples lived together; by 1994 that
number had jumped to 3.7 million -- a whopping seven-fold increase. Fully one-third of
these households also contained children under 15. And while these numbers may be slightly
inflated due to landlord-tenant or similar arrangements, the definition of an
"unmarried couple household" includes only heterosexual couples -- so the actual
number of people who are cohabiting as if they were spouses is likely much higher across
the nation. Some numbers from the National Center for Health Statistics (NCHS):
- 41.1% of all women between the ages of 15 and 44 have cohabited with a man at some time
in their lives.
- Over 65% of those women have been married at least once in the past.
- 57% of those cohabitations resulted in marriage -- but about one-third ended up breaking
down.
- At any one time, about 10% of all American women are cohabiting.
Recommended Reading
The American Bar Association Guide to Family Law
Jeff Atkinson
Written in layman's terms with several useful sidebars and checklists, this book lives up
to its subtitle: "The Complete and Easy Guide to the Laws of Marriage, Parenthood,
Separation, and Divorce." Atkinson clearly explains the basics of family law
(including premarital agreements, invalid marriages, dividing property, and alimony), as
well as dealing with cohabitation, common-law marriages, and your rights in the event of a
divorce or separation.
Don't Settle for Less: A Woman's Guide to Getting a Fair Divorce and Custody
Settlement
Beverly Pekala
A Chicago attorney with years of experience in family law, Beverly Pekala P.C. shows women
how to take a proactive stance to ensure beneficial financial settlements as well as
appropriate custody and visitation arrangements. This step-by-step guide includes
substantial sections on common-law marriage, palimony, and cohabitation agreements.
How to Divorce in New York
Grier Raggio and Michael Stutman
Written by two family-law attorneys, this book shows you the practical and legal mechanics
of divorce, including a chapter on "Cohabitation and Alternative Lifestyles."
The authors guide you through the process, explaining your rights and obligations --
whether you were legally married or not.
Cupid, Couples & Contracts: A Guide to Living Together, Prenuptial Agreements,
and Divorce
Lester Wallman with Sharon McDonnell
One of the nation's leading matrimonial attorneys, Lester Wallman takes you step-by-step
through relationships, contracts, and the law. The entire first chapter is devoted to the
legal complexities of living together, and there's even a section of sample legal forms to
get you started.
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