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The Legal Fiction Of Common-law Marriage
By Johnette Duff, Fri Dec 9th
During a radio-talk show appearance, a caller told me about hisunfortunate brush with the legal fiction of common-law marriage.He had been living with a woman for several weeks when he camehome one evening to find the woman, his TV and assorted otherproperty missing. He called the police, who mistakenly informedhim that the woman was his common-law wife and so they couldn’thelp him. What qualifies as a common-law marriage? Take your pick: 1.Leaving too many clothes at your girlfriend’s house? 2. Livingtogether six months 3. Living together seven years? Chances are you picked the third answer, but all three responseare equally wrong. A common misconception is that the length ofcohabitation creates common-law status. This is not true.
Three elements are necessary and none relate to a time-frame. Acouple must 1. Live together 2. Agree between themselves to bemarriage 3. Represent themselves as married (also called“holding-out.”) The agreement in the second element does not have to be written;it can be implied by the behavior of the parties. Signing leasesas husband and wife or filing
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joint income tax returns areexamples of the proof used to imply a common-law marriage. In the example above, the police, as are most people, werewoefully misinformed. Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, NewHampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utahand D.C. recognize common-law marriages. Ohio repealed itsrecognition in 1992. Pennsylvania has just now abolished it.Other states may recognize an informal marriage if it wasoriginally contracted within one of these states. In the past, common-law marriage was often seen on the lowersocio-economic rungs of the ladder. However, oftenmake the news with claims by their live-ins of this status. If you are concerned about your own status, contact an attorneyin your state for more information. About the author:Johnette Duff is a Matrimonial Attorney licensed to practice inthe state of Texas. Ms. Duff is the author of “The SpousalEquivalent Handbook”: a legal and financial guide to livingtogether, “The Marriage Handbook”: a legal and financial guideto your spousal rights, and “Love After 50”: the complete legaland financial guide. She has helped thousands of individualsbuild successful relationships.
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