Common Law Marriage in Virginia

Okay, so, the headline of this article, “Common Law Marriage in Virginia” is a little misleading, and I’ll tell you why.

There is NO common law marriage in Virginia.

Common law marriage is a thing, at least in some states, but it isn’t in Virginia.  The theory there, which I assume you already know, is that, if you and your partner have lived together long enough (usually somewhere in the neighborhood of seven to ten years), the law will eventually deem you married just by virtue of your continued cohabitation.

Over the years, many states have eventually gotten rid of their laws regarding common law marriage, so that, now, very few states still have the possibility.  In most places, Virginia included, you have to actually, physically, purposefully get married in order to be considered married for all related marital purposes, including divorce.

What do you mean, married for the purposes of divorce?

Well, in reality, divorce is meant to be a protection for lesser earning spouses, in particular.  If you aren’t married, you don’t have an interest in things (like spousal support or retirement) that were earned, purchased, or otherwise acquired during the marriage.

Divorce might kind of suck in a lot of ways, but it’s also there to benefit you, especially if you earn less than your husband.  If you’re not married, then you can’t take advantage of all the benefits afforded to you by the divorce process in Virginia.  In Virginia, to be married, you have to actually get married – so, the ceremony has to be solemnized, officiated by someone licensed in the Commonwealth to perform marriage ceremonies, the whole shebang.  I’m not in the wedding business, though; I handle divorce.

But to get divorced, you’ll have to officially marry first, and you can’t do that just by shacking up – at least, not in Virginia.

What if I have a common law marriage recognized by another state?

That can happen, but it’s unusual.  These days, more and more states are cracking down on so-called common law marriages.  Many states have dates after which a common law marriage isn’t recognized, so if you shacked up prior to a particular date, you could be found to have a common law marriage, but afterwards you couldn’t.

We’d need to look into the laws in the state that you’re coming from to see whether it’d be recognized in Virginia.  I’ve seen it happen that a common law marriage was recognized, but under very limited circumstances.  You’ll want to talk to an attorney early on if a common law marriage is part of your case.

What if we’re NOT common law married?  …We’re not married at all?

If you don’t have a common law marriage and you’re living with someone, you’re single.  Not, like, Facebook status single, necessarily, but you’re single in the eyes of the law.  That means that you don’t have the added tax advantages of marriage, and it means that you don’t have the ability to take advantage of divorce.  It sounds a little weird to say it that way, “to take advantage of divorce”, but that’s really what it is – a privilege afforded to people who legally recognize their relationships.

Because of divorce, married people are able to divide between them the things that were earned by them as partners during the marriage.  Single people only earn what they personally earn, whether or not they’re in a relationship.  Boyfriends and girlfriends don’t receive spousal support (I mean, obviously, because they aren’t spouses), portions of the retirement, or an interest in anything purchased during the relationship but titled in the name of one spouse only, among other things.  Not being married also complicates things purchased together.  Because you’re not in a legally-recognized relationship, you don’t have the ability to ask the court help you to divide the things you acquired during your relationship and can’t agree about how to split.  And, in most cases, there’s really very little to divide anyway, because it’s so clearly his and hers – there never was an “ours”, at least, not legally.

We’ve lived together for a really long time.  Are you saying I’m not entitled to receive anything if we break up?

Well, not necessarily that you won’t receive anything – but you haven’t earned an interest in anything that is clearly his, like retirement, even if you were together or helping to financially support him while he earned it.

In many ways, divorce is a protection.  Even though it can feel like the law is just there to make something difficult much, much harder, it isn’t.  It’s there to protect you, and your interest in the things that were earned during the marriage.  After all, marriage is (legally!) a partnership, so nothing is earned by one spouse without the help or input of the other, even though it may technically be earned specifically through the employment of one spouse or another.  Not so when you’re not married.

So, okay, I may have lured you here under false pretenses.  I wrote an article headline for something that doesn’t exist.  There’s no such thing as common law marriage in Virginia, and it’s often a little tricky to get a common law marriage from another state recognized in Virginia for the purposes of divorce.

For more information about common law marriage, divorce, or your rights under Virginia law, give our office a call at (757) 425-5200, schedule a consultation, or plan to attend our monthly divorce seminar.

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