What Is Common-Law Marriage?
A common-law marriage is a marriage formed without a license or ceremony, typically by a couple who agree to be married, live together, and present themselves to others as married. Only some states allow new common-law marriages to be formed, and the requirements are set by each state's law. Texas, for example, calls it an "informal marriage." Federal agencies such as the IRS and Social Security generally look to state law to decide whether a common-law marriage is valid.
What the law says
- Example (Texas): Texas recognizes common-law marriages. The Texas State Law Library lists three conditions: each partner must agree to be married; after that agreement they must live together in Texas as a married couple; and they must represent to others that they are married. Texas State Law Library, Does Texas recognize common law marriages?
- Texas law calls this an "informal marriage." Under Texas Family Code Sec. 2.401, it may be proved in a court or other proceeding either by a signed declaration of informal marriage or by evidence that the parties agreed to be married, lived together in Texas as spouses, and represented to others that they were married. Texas Family Code Sec. 2.401-2.402 (Texas Legislature, Family Code text)
- Texas couples can register an informal marriage by filing a Declaration of Informal Marriage with their county clerk's office; the declaration is signed on a form prescribed by the state bureau of vital statistics and provided by the county clerk. Texas Family Code Sec. 2.401-2.402 (Texas Legislature, Family Code text)
- In Texas, if a proceeding to prove an informal marriage (without a signed declaration) is not started before the second anniversary of the date the parties separated and stopped living together, it is rebuttably presumed that they never agreed to be married. Texas Family Code Sec. 2.401-2.402 (Texas Legislature, Family Code text)
- In Texas, a person under 18 may not be a party to an informal marriage, and a person who is currently married to someone else may not enter an informal marriage. Texas Family Code Sec. 2.401-2.402 (Texas Legislature, Family Code text)
- A Texas common-law marriage is ended the same way as a ceremonial one: the Texas State Law Library says couples who want to end a common-law marriage must file for divorce. Texas State Law Library, Does Texas recognize common law marriages?
- Example (Ohio): Ohio prohibits common-law marriages formed in the state on or after October 10, 1991. Ohio common-law marriages formed before that date, and those formed in another state or nation that recognizes common-law marriage, can remain valid if they have not been terminated. Ohio Revised Code 3105.12
- For federal tax purposes, the IRS treats a couple as married if they live together in a common-law marriage recognized in the state where they now live or in the state where the common-law marriage began. IRS, Publication 501, Dependents, Standard Deduction, and Filing Information
- The IRS recognizes a marriage for federal tax purposes if it is recognized by the state or U.S. territory where it was entered into, regardless of where the couple legally resides. IRS, Publication 501, Dependents, Standard Deduction, and Filing Information
- Social Security makes common-law marriage determinations in accordance with state law. Its procedures note that some states allow common-law marriages to be established, while other states that do not may still recognize ones established elsewhere. Social Security Administration, POMS GN 00305.065 Development of Common-Law (Non-Ceremonial) Marriages
FAQ
How is a Texas informal marriage proved?
Either with a declaration of informal marriage signed as the statute provides, or with evidence that the couple agreed to be married, then lived together in Texas as spouses and represented to others that they were married.
If we move to a state that doesn't allow common-law marriage, are we still married?
It depends on the new state's law. Ohio, for example, recognizes common-law marriages validly formed in another state or nation that allows them, as long as they have not been terminated.
Can a common-law couple file a joint federal tax return?
Yes, if the common-law marriage is recognized in the state where they now live or the state where it began, the IRS considers them married for filing status purposes.
How does Social Security decide whether a common-law spouse qualifies?
It applies state law and asks for evidence, such as statements from each spouse and from blood relatives, and documents like rent or mortgage receipts, insurance policies, or bank records showing the couple presented themselves as married.
Is there such a thing as a common-law divorce?
In Texas, no separate process exists: couples who want to end a common-law marriage must file for divorce.
Related
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- Do I Need a Lawyer for a Divorce?
- How Long Does a Divorce Take?
- How Much Does a Divorce Lawyer Cost?
- How to File for Divorce, Step by Step
- Is Child Support Taxable?
- Joint vs. Sole Custody: What's the Difference?
- What Is a Divorce Decree?
- What Is a No-Fault Divorce?
- Who Claims the Child on Taxes After Divorce?
- Divorce & Family Law by state
General legal information, not legal advice. Laws change and local rules can differ; check the linked official source or talk to a lawyer about your situation.