What happens if one party of a separating couple does not agree that he or she is in a common law marriage? Well, the court could intervene to try to determine if their marriage is a common law marriage or not.
Is it a Common Law Marriage or Not?
You will need to verify the legality of a common law marriage if one of the “spouses” tries to misrepresent his or her participation in the marriage so that he or she could avoid getting a divorce when they separate and the related duties such as spousal support, property division, and child custody, etc.
The most crucial requirement for common law marriages is the agreement of both individuals that they are married, explains Lewis & Matthews, P.C., a top family law attorney in Denver, CO.
The best proof of a common law marriage is a written agreement that both spouses signed, and a witness if any. Ideally, the agreement should include their intent to have a common law marriage and the date they started being married.
If they did not agree, another solid evidence is an affidavit that states their intention of being married.
What if There Is No Agreement or Affidavit?
Because certificates and licenses do not apply to a common law marriage, courts would review the following instead:
- If the couple wears marriage/wedding rings
- If they had an informal marriage ceremony
- Their reputation of a married couple among family, friends, and other third parties
- If they jointly own properties and other financials
- State and federal tax returns that they jointly filed, which means that they represented themselves as a married couple, otherwise, they risk being charged with perjury
- If they put their partner as their “spouse” on paperwork such as insurance forms;
- If one party took the other party’s surname; and
- Other factors like greeting cards or letters that referred to their “married” status.
Courts take into account a vast array of factors to establish the validity of a common law marriage claim to prevent self-serving individuals from just walking away once the relationship is over and avoid the divorce process and all that comes with it.