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Common Law Marriage

Oftentimes, people inquire if California is a state that recognizes "common law marriages," and the answer is as much complex as the reasons for asking the question are diverse.

It's true that California does not allow common law marriage, and many law firms give this short, simple answer as if it answered all the relevant questions. But in reality, there is much more you need to know about the issue if you are involved in a marriage or a divorce in California to which this and similar maters relate.

At San Diego Divorce Attorney, we understand the details of the law and of how the system actually works, regarding common law marriage, cohabitation, and related issues. If you have any questions on these subjects, do not hesitate to contact us by calling 858-529-5150, and we will be happy to address all of your concerns and give you a free, no-obligation legal consultation.

What Is Common Law Marriage and Where Is It Legally Recognized?

A "common law" marriage is when two persons live together in a marriage-like relationship for long enough that a state finally just counts them as married despite their never having actually gone through the formalities of getting a marriage license, having a wedding ceremony, and the like.

Only 11 states (currently) recognize common law marriages at all, and these states will have different criteria and processes by which a common law marriage is recognized. But California, it so happens, is not among the 11 common law marriage states.

Where recognized, common law couples normally have to live with each other a specific period of time, present themselves to the public as if married, and show they have an intention of being/getting married.

Some states also look at whether you use your partner's last name, file taxes jointly, and other factors in determining which common law unions to declare valid.

Where allowed, common law marriages are of equal status with ordinary marriages - the same rights and duties apply, and the same laws apply should the marriage end in divorce or legal separation. That means that alimony (spousal support), property division, and child custody issues work the same way.

How Can a Common Law Union Get Recognized in California?

First of all, California law does not officially recognize common law marriage as a way to get married in California. Before common law unions were abolished in California in 1895, you could get one here - but not now.

California Family Code Section 300 defines marriage unswervingly as a "civil contract" between two people who voluntarily enter a marital union, while being of mental capacity to understand the nature of the union they are entering - and, as a union formed through "solemnization," which means you have to get a marriage license and have at least a short, civil marriage ceremony. There are no exceptions - if you get married in California without a proper marriage license, you are not legally married.

However, that doesn't mean there aren't any common-law couples in California. If you are married under common law principles in another US state, DC, or even a foreign country, California may well recognize that union as valid if you later relocate in-state. That can work even in a divorce case, but it will create a more complex scenario.

But realize that a common law marriage formed in and recognized by another US state or a foreign state is not automatically valid if you move to California. California courts will look at each case individually, on its own merits, in such situations. They may not accept the laws of the other jurisdictions OR they may. Obviously, a good experienced family law attorney will be invaluable to ensure your common law union is recognized in California, since so much depends on how your case is presented and argued in court.

Realize that there are past cases in the California state court system where out of state common law marriages got declared valid in California, but also realize that his is not the norm. They usually don't. So you have to fight hard and know what you're doing.

But even if you can't get your common law marriage recognized in California, there are still ways to protect your rights both during the marriage or if you are getting a divorce or legal separation.

What About Out of State Common Law Marriages Under California Law?

The different states of the United States generally are Constitutionally bound to recognize each other's marriages. But that doesn't necessarily translate into: you live in California, you go to Texas and get a common law marriage, then you move back to California as soon as possible and expect California to recognize it.

Still, residents of other states who have common law marriages recognized where they live visit California or do business in California or hold property or a bank account in California, the state of California is probably going to recognize it.

If you live in California and live with someone but are not legally married, that changes the property and spousal support situation - in fact, you may or may not be able to get any support (but it wouldn't be "spousal" support as such) and property division may have to be worked out quite differently.

But that won't change child support, child custody, or visitation rights issues at all. You don't have to be married to have a child together - and the child's rights are not canceled, nor the parents', simply because the parents are not legally married.

The Confidential Marriage License Option

Before we move on to talk about what happens when two people who were long living together (but were never legally married) break up, first realize that one can always easily get married in California if you're not already.

And under California's "confidential marriage license" law, you can keep the marriage license off the public record if you like and keep the marriage itself as confidential as possible. You may not want to draw a lot of attention, perhaps, and confidential marriages accommodate you there. And without a court order, no one can even look at the marriage certificate.

Around 20% of marriages in California are done by a confidential marriage license, so you wouldn't at all be alone if you choose this route. But if you have separated from your partner or are about to, you may need to focus on the next couple sections just below instead.

The Status of "Putative Spouse" in California Law

There are certain (though relatively rare) situations where a couple in California who were not legally married can still enjoy various financial rights during a divorce, just as if they had been married.

For starters, if either or both of the partners had a reasonable, "good faith" belief that they two were legally married, even though the marriage ended up being declared void, a "putative spouse" situation is created.

If the couple did the best they could to meet the legal requirements of marriage under California law, but some legal technicality was violated, the spouse may be regarded as if they had been legally married all along for many purposes.

One common situation occurs when one spouse had a previous marriage which he or she thought was legally dissolved, but it turns out the divorce was not properly finalized after all. That could go unnoticed for a long time if the couple lived in a different state and it was a very small technicality that went wrong. And if the prior divorce was not final, then the new marriage could not be valid since polygamy is not legal in the United States.

Fighting for Putative Spouse Status

There are many situations, both in and out of divorces, where putative spouse status can become a big issue. Two people who thought they had long been married may simply want to get the matter resolved - putative spouse status could be followed by getting married "again" to make it valid.

Or, in a divorce, a procedural problem at the beginning of the marriage may be discovered. That may lead to a denial of spousal support rights and property division rights. But it's possible that the spouse who would receive support after the divorce, might fight for and obtain putative spouse status.

But you can't just say you believed you were married and leave it at that. It has to be proved. That's where you need a good family law lawyer.

Plus, if you have a pre or post nuptial agreement and you discover your marriage was not valid, you will need to become a putative spouse, "re" marry your "spouse," and also get the nuptial agreement reinstated.

Without a valid marriage or putative spouse status, community property laws and alimony laws won't apply. So if there's a problem, you may want to get it corrected as soon as possible. We can help you do that.

What Is "Palimony" Under California Law?

Although full alimony (spousal support) does not apply if you were never legally married to your partner, there is the possibility of getting more limited support called "palimony" if you were living together for a long time and meet certain other requirements.

Palimony (pal + alimony) is also called "Marvin" support because it came about after a court case in California called Marvin v Marvin. The case involved Michelle Marvin suing for support and half the estate of Lee Marvin after breaking up (but never having been married.) The state Supreme Court decided that IF there was an "implied contract" to share income and property just like in a marriage, THEN she could collect. However, she failed to satisfactorily prove her point. BUT, that doesn't mean that others in similar situations have never or can never prove such an implied contract.

If you had a written or verbal contract you can prove existed, or can show that by actions such a contract was assumed by both of you, you may be able to collect at least a limited amount of "palimony" or "Marvin" support, even without a legal marriage ever having existed.

What About Annulments?

If you and your partner thought you were married but it turns out you really were not, it may be an annulment has to be sought instead of a divorce. How does this affect alimony, property division, and other issues?

The fact is, you will lose your alimony and community property rights if an annulment is sought instead of a divorce. If the other party willingly consents to give support or divide the property a certain way, that's one thing, but that's not necessarily going to happen.

Also, there are strict limits on what an annulment can be filed for and also statutes of limitations involved. [See our full article on California annulments for more information in this regard.]

Why Opt for San Diego Divorce Attorney?

We at San Diego Divorce Attorney handle much more than just divorce cases, though we do have very, very extensive experience in that regard. We also handle all manner of family law cases, including issues related to common law marriages, putative spouse status, legal separations, annulments, child support, alimony and "palimony," and more.

If you have any questions on any of these matters, we will be able to quickly address your concerns and help you to better understand your legal situation and legal options.

We have many years of working to help local San Diego and Southern California residents overcome various obstacles they face in regard to marriage and divorce law in California. We know the law and the local courtroom processes down to the minutia, and we can ensure the best possible outcome to your case in a minimum amount of time.

We always treat each and every client with the utmost respect, and uphold the highest ethical and professional standards. We offer you top-tier family law legal help at highly competitive rates, and we have a long track record of winning for our clients.

Contact Us Today for Help

At San Diego Divorce Attorney, we can help you sort through all issues related to common law marriage, cohabitation, and other similar family law matters.

We know what the law of California stipulates in regard to these things down to the nitty-gritty details. And we have deep experience in handling these types of cases in San Diego and throughout Southern California.

To learn more or for a free consultation and quick beginning to your case, do not hesitate to contact us today by calling 858-529-5150.


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