I used to get lots of questions about common law marriage. Lately, well, not so much – until the other day. A woman asked me what, in my opinion, was a very perceptive question about whether marriage is designed to be a safeguard to protect spouses (and, in particular, lesser earning spouses).
Most of the time, women who are in the midst of a divorce don’t see divorce as the protection that it is, but the reality is that – without having had a marriage – there is no divorce. Does that sound like a good thing? I mean, it is, in some ways, but it also means that you can’t avail yourself of the protections guaranteed to you under the law of your state. In Virginia, that means a share of the assets that were earned, purchased, or acquired during the marriage. It means division of retirement, bank accounts, and real estate. It means the possibility of spousal support, assuming the other factors associated with spousal support end up confirming that an award of spousal support would be appropriate.
Marriage has nothing to do with the ability to have the court decide custody, visitation, and/or child support, though; after all, plenty of unmarried couples have children. Married or not, you can have custody, visitation, and child support determined at the juvenile court level or, if part of a larger divorce action, in the circuit court.
Common law marriage is a sort of old school concept that held that, if you and your partner cohabited in a certain way for a certain period of time, the law would basically confer ‘marital’ status on you and your partner, despite never having walked down the aisle, made any vows, or affirmatively taken any action to cement that partnership. Most states have done away with common law marriage. Notable exceptions include Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, and Texas – but specific qualifications vary from state to state, so you’ll still want to do your research.
It’s possible, too, for a common law marriage to be recognized, assuming that it was entered into prior to the point that the state did away with common law marriages. We call that being ‘grandfathered’ in. In Virginia, though we no longer recognize common law marriage, we would also recognize common law marriages recognized by other states.
I haven’t had a common law marriage case, but I imagine it would be messy pinpointing exactly when the ‘marriage’ began and ended – and, of course, the potential litigation involved from the opposing (likely higher earning) spouse who says that the parties intended no such thing.
Sometimes, when it comes to litigation, it doesn’t really matter whether you win or you lose – because, no matter what, you’re out the money. If you’re a significantly lesser earning spouse, you may not even have the money to afford the retainer to get an attorney to represent you in your common law marriage case.
In general, though, you are only married if you were actually legally married, and you are not divorced until your final divorce decree is entered. In 99.9% of cases, this is both very true and very clear, so it’s not something that we have to litigate. (Important note: separated is NOT the same as divorced!)
Obviously, if you believe that you entered into a common law marriage – either from when Virginia recognized it before, from another state that still recognizes common law marriage, or because you’re grandfathered in another state – and there are significant assets, there’s really nothing else to do but consult with a licensed family law attorney to help you figure out which way is up.
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