Why common-law marriages can be tricky

There's still a widespread belief that if a couple has lived together for a specific number of years (seven is the commonly-cited number), they are in a "common-law marriage." Ending that relationship, some believe, may entitle them to spousal support, an equal division of property and other elements of divorce.

Common-law marriage was not uncommon in the early days of our country when many couples didn't have easy access to someone who could legally married them. It allow couples to have a legitimate relationship, pass on property and protect women who would otherwise be left with little or nothing if their partner died.

Today, however, only a limited number of states (and Washington, D.C.) legally recognize common-law marriage, and with many of these, it's recognized only under specific circumstances. New York is not one of those states.

However, if you were married in a state where common-law marriage is or was legal (some states have abolished it), and you move to New York or another state that doesn't recognize it, your common-law marriage is still recognized.

Even in states where common-law marriage is recognized for things like inheritance rights or tax advantages, there's no such thing as a common-law divorce. That's why things can get tricky if a couple breaks up or if one person dies. There's no legal document to prove a common-law marriage, and what entails one varies by state. It may involve living together for a certain period of time as a couple or just presenting yourselves as a "married" couple to friends and family.

A person seeking support or property from an estranged partner may be met with the argument that they never in fact had a common-law marriage. These cases often end up before a judge who must look at a multitude of factors to determine whether the couple did indeed have a recognized common-law marriage.

There are ways that couples who decide to cohabitate but don't want to marry can work to ensure that their assets are protected in the event of a break-up and that they are provided for, if necessary -- for example, if one leaves the workforce to have children.

A New York family law attorney can help you work to draw up a legal agreement. If you decide later to get married, this can be a good basis for a prenuptial agreement.

Source: NPR, "No, You're Not In A Common-Law Marriage After 7 Years Together," Heidi Glenn, Sep. 04, 2016

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