September 24, 2014 By Paul Wallin

If you have been common-law married in a state that recognizes these types of marriages and are considering moving to California, there are some things you may need to know. In order to understand the purpose of a common-law marriage, let’s observe some of the benefits of being married.

Benefits of Being Legally Married

The legal status of marriage comes with several benefits, both under California and Federal laws. Benefits include rights to inheriting community property, social security, child custody, health insurance, certain tax rights, spousal support, additional rights in certain legal situations and social recognition, among others.

Establishing a Legal Marriage

Establishing legal marriage status

It is important to note that establishing the legal status of marriage can be different depending on the laws in each state. Some state marriage laws are strict and there are several technical requirements in order for a marriage to be considered valid under the law. For example, most states require couples to obtain a marriage license as well as have a solemnization ceremony before they are considered legally married.

However, some states still allow couples to have the legal rights of marriage without following these formal requirements. States that recognize common law marriage offer legal marriage rights to couples whose marriages are not solemnized and licensed.

What is Common Law Marriage?

Common Law marriages, which were recognized in the United States before the start of the 20th century,1 do not require couples who wish to be married to obtain formal licenses and solemnization. Instead, common law marriage states require that the parties of the marriage meet the following requirements. In order to have a valid common law marriage, parties to the marriage must:

  • Agree to be married;
  • Cohabitate; and
  • Hold themselves out as married in their daily lives, showing an intent to be married.

The specific details of these general requirements differ from jurisdiction to jurisdiction. In jurisdictions that still allow common law marriages, these marriages are indistinguishable from licensed and solemnized marriages.

States that still recognize common law marriage include:

  • Alabama
  • Colorado
  • The District of Columbia
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • Oklahoma
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • Texas
  • Utah2

How Do Couples Show “Intent to Be Married”?

In determining whether a particular couple has shown intent to be married in their relationship for the purposes of common law marriage, courts have used a totality of the relationship standard. This means that courts look to the circumstances of the relationship and how the individuals conduct themselves in their daily lives. Things that are considered are:

  • Exclusivity and longevity of the relationship
  • Emotional commitment
  • Financial commitment
  • Manner in which parties hold themselves out to society
  • Reliance placed upon one-another3

Is Common Law Marriage Valid in California?

California abolished common law marriage in 1895.4 However, when a couple marries by way of a valid common law marriage in another state, California recognizes that marriage under its laws. According to California Family Code § 308, “A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.” Thus, common law marriages established in states that recognize them will also be considered valid in California.

How to Get a California Divorce from a Common Law Marriage Established in Another State

Because a common law marriage that is established in another state is also valid in California, a divorce from a common law marriage undergoes the same court procedures as a divorce from a licensed and solemnized marriage in California. It is important to consider this fact when ending a valid common law marriage in California. Due to the complexities involved in a California divorce, you should hire an attorney can help you establish a strategy for your divorce.

Call Wallin & Klarich Today

At Wallin & Klarich, we understand that it can be difficult to terminate your marriage. However, there are various issues associated with ending a relationship from a common law marriage. For this reason, it is important that you seek the assistance of an experienced family law attorney immediately. Our knowledgeable attorneys at Wallin & Klarich have over 30 years of experience successfully helping our clients with complex divorce issues. Let us help you today.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, our knowledgeable attorneys are available to help you no matter where you are located.

Call us today at (888) 749-7428 for a free phone consultation. We will get through this together.

1. 13 Wm. & Mary J. of Women and L. 483, 485.

2. Common Law Marriage, 0080 SURVEYS 20.

3. In re McKanna’s Estate, 106 Cal. App. 2d 126, 234 P.2d 673 (Cal. Ct. App. 1951).

4. 13 Wm. & Mary J. of Women and L. 483, 485.

Leave a comment

Practice area

  • Contact Us Now

    If you want a caring and aggressive family law firm fighting for your legal rights, now is the time to contact us.

  • This field is for validation purposes and should be left unchanged.


Latest Posts

SCHEDULE YOUR free consultation
  • This field is for validation purposes and should be left unchanged.