Ah, the ever-popular myth: if you shack up for seven or ten years, boom! You’re “married” by common law. Spoiler alert—that’s completely wrong! The truth about common law marriages is far more nuanced and rooted in agreement and intent rather than the length of time spent living together.
So, what exactly is a common law marriage? A common law marriage is a legally recognized marriage without a formal ceremony or marriage license. Instead, it’s based on the couple’s mutual agreement to be married and their public representation as a married couple—such as referring to each other as “husband” or “wife,” sharing finances, or filing joint tax returns. Importantly, it holds the same legal weight as a ceremonial marriage in states where it is recognized.
What States Recognize Common Law Marriages?
Currently, common law marriage is recognized in a limited number of states, including:
- Colorado
- Iowa
- Kansas
- Montana
- Rhode Island
- Texas
- Utah (under specific conditions)
- Washington, D.C.
Some other states honor common law marriages that were established before the practice was abolished in their jurisdiction. For instance, Ohio and Pennsylvania no longer allow couples to form new common law marriages but still recognize ones created before a certain date.
Here’s the important part: if you enter a valid common law marriage in a state that recognizes it, you are legally married—even if you move to a state that doesn’t recognize new common law marriages. The Full Faith and Credit Clause of the U.S. Constitution ensures your marriage is valid across the United States.
Common Law Myths and FMLA Protections
One of the most persistent myths about common law marriage is that living together for a specific number of years—be it seven, ten, or twenty—automatically makes you married. This isn’t true. The duration of cohabitation doesn’t matter. What does matter is the couple’s mutual agreement to be married and their public acknowledgment of that commitment.
This legal distinction is critical when it comes to benefits like those provided under the Family and Medical Leave Act (FMLA). Under FMLA, eligible employees can take unpaid, job-protected leave to care for their spouse. If your common law marriage is valid in the state where it was established, your spouse is recognized as a legal spouse under FMLA—even if you’ve since moved to a state that doesn’t recognize common law marriages. For example, a couple married under common law in Texas can still take FMLA leave for each other after moving to Florida.
Why Does This Matter?
The implications of common law marriage go far beyond FMLA. A valid common law marriage grants all the legal rights and responsibilities of a traditional marriage, including spousal inheritance, healthcare decision-making, and tax benefits. However, it also means that ending the relationship requires a formal divorce—there’s no such thing as a “common law divorce.”
HR professionals and employees alike must understand the nuances of common law marriage, especially when navigating workplace benefits. Ignoring or misunderstanding these rights could lead to denied benefits and potential legal challenges.
Key Takeaways
- Common law marriages are legally binding and carry the same rights and responsibilities as traditional marriages.
- Living together for a set number of years is not what establishes a common law marriage. The mutual agreement and public acknowledgment of the relationship are key.
- Valid common law marriages are recognized nationwide, even in states that don’t allow new common law marriages.
- Spouses in a valid common law marriage are entitled to benefits under FMLA.
- Always consult a legal professional for clarity on how your state’s laws affect your situation.
Elga Lejarza
Founder/CEO
Lejarza HR Consulting
