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Posted on Jul 15 on 2014

A couple becomes married by common law when there is no official ceremony, no marriage license and the couple never fulfills the state’s statutory marriage laws, but the two people consider themselves to be married and fit other specific conditions. Common law marriage, however, does not exist in California. There are an abundance of myths surrounding common law marriages; I will try to tackle a few:

Every state recognizes common law marriage.

Not true. Most states, including California, do not recognize common law marriage. The states that do recognize common law marriage are: Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah and Texas and the District of Columbia. Utah only recognizes common law marriages if the marriage has been validated by a court order. New Hampshire only recognizes common law marriage for the purposes of probate.

If you live together for a certain number of years you are considered married.

Not true. It does not matter how long you live together, 7, 10 or 20 years, etc., unless you meet other very specific conditions. Even then, you will only be considered married by common law if you reside in one of the states referenced above and meet the statutory requirements of that state.

California will not recognize a common law marriage.

Yes and no, it depends on where you were “married”. If you have lived as a married couple, by common law, in state that recognizes common law marriages and then you move to California, pursuant to Family Code Section 308 “marriages 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.”

If the couple was never married, a California court will not order support or property division.

When a couple splits, after having lived together for an extended period of time there might be a right to support and a right to certain property acquired during the relationship. This is commonly referred to as palimony, as well as a Marvin Claim, after the 1976 California Supreme Court decision Marvin v. Marvin.

The basis of a Marvin Claim is dependent upon an expressed or implied contract. Such a claim is brought as a civil action, unless the claim is brought in addition to a dissolution proceeding. Cohabitation agreements are one way that a couple can create a “non marital agreement” that will essentially cover the issues that might arise if they do end their relationship in the future. This agreement can be a way for a couple to avoid the complicated issues of property ownership, commingling of bank accounts and other issues that may arise. Some individuals might be reluctant to sign an agreement as they believe it is a sign of distrust. To the contrary, this is a good way to discuss all of these topics with your partner and know where each stands on the issues.

– Sarah Rosenblatt