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A and B have been in a common law marriage for many years. A and C then apply for and receive a marriage license.

When A and C marry, what is the legal status of each marriage?

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  • 2
    Since there are only 7 States that recognize common law marriage, can you narrow this down as they are not the same?
    – Ron Beyer
    Sep 22 at 17:18
  • I'm happy to hear answers from any applicable jurisdiction.
    – bdb484
    Sep 22 at 18:33
  • 2
    @RonBeyer The question can come up in any U.S. state even though there are only seven states where a common law marriage can come into being. Every U.S. states recognizes common law marriages validly entered into where they were entered into at the time they were entered into subject to some very narrow exceptions discussed in my answer.
    – ohwilleke
    Sep 23 at 0:23
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A and B have been in a common law marriage for many years. A and C then apply for and receive a marriage license.

When A and C marry, what is the legal status of each marriage?

I assume in answering all of these questions that C did not know that A was in a valid common law marriage to B at the time of C's marriage to A, although the answers below may implicitly shed some light on how the questions would be resolved if C was aware of this fact.

The Marriage Of A and C Is Invalid, The Marriage Of A and B Is In Force

The only way to end a common law marriage that is valid in the recognizing state (i.e. either the same one where it is entered into or another way as the case may be; see below for when a common law marriage or foreign marriage must be recognized as valid) apart from a Utah common law marriage, is by the same death or divorce that would terminate a valid marriage entered into with a marriage license.

A valid marriage is not established between A and C.

No marriage is established between A and C, even if A and C are married in a state that does not recognize common law marriage, and even if both A and C were not aware that a common law marriage was formed between A and B because A and C did not know that the state where A and B were living at the time that the common law marriage was formed recognized common law marriage.

This rule is subject to an important burden of proof rule. If there is a facially valid marriage certificate in evidence, the burden of proof is on the person seeking to show that this marriage is void to show that any prior marriage did not terminate by death or divorce prior to the new marriage certificate being issued.

This rule flows from the fact that there is no comprehensive index of divorces entered in the United States and the fact that a valid divorce can be entered by consent of the parties in a jurisdiction other than the place where the parties were domiciled at the time of the purported divorce. In practice, this can be used to circumvent the general rule even when the general rule actually applies, especially when a putative marriage existed for many years and the common law marriage was long ago and the couple was separated shortly after it formed (often with the former common law spouse or both spouses being dead at the time of the litigation). But, this is only a burden of proof rule and can be overcome with affirmative proof of a lack of divorce (e.g. by the testimony of A and/or B in this question).

The question of when a foreign divorce is recognized by a U.S. state as valid is a complicated one and beyond the scope of this question. It is particularly complicated in countries with non-Western legal systems such as Islamic law, in which some divorces are effected non-judicially.

Where Are Common Law Marriages Valid

Most states recognized common law marriage at some point in their history, or prior to becoming states when they were territories or parts of other countries. The states that currently recognize common law marriage or recently did so, if the marriage was formed in the first place in that state are as follows:

  • Alabama (if created before January 1, 2017)

  • Colorado (subject to restrictions for minors but allowing same sex marriages even if common law marriage between them was not legally recognized at the time of the common law marriage)

  • District of Columbia

  • Georgia (if created before January 1, 1997)

  • Idaho (if created before January 1, 1996)

  • Iowa

  • Kansas

  • Montana

  • New Hampshire recognizes domestic common law marriage for purposes of probate only (there is a three year cohabitation requirement) although it recognizes valid common law marriages entered into outside the state.

  • Ohio (if created before October 10, 1991)

  • Oklahoma

  • Pennsylvania (if created before January 1, 2005)

  • Rhode Island

  • South Carolina

  • Texas

  • Utah recognizes only common law marriages that have been validated in a judicial proceeding. A common law marriage may be validated by a court of law up to one year after the alleged marriage has been terminated (effectively allowing for "common law divorce" in Utah only). Prior to statehood, Utah allowed polygamous marriage (at least de facto) and this issue greatly delayed its admission as a U.S. state, but it does not now recognize such marriages as valid and all people who entered into those marriages are now dead.

The exact test for a common law marriage formation varies by state.

The most common test for formation of a common law marriage is an understanding of the couple between each other that they are married, the couple holding themselves out to the public that they are married (especially in joint tax returns and in health insurance applications), and in some states, either cohabitation or consummation of the marriage.

There is a body of law governing what connect a couple must have to a state in order for their relationship to be subject to that state's common law marriage rules. If the couple has a shared domicile in the state that is generally sufficient, but this is not always the bare minimum level of connection necessary to establish that a state's common law marriage laws will apply to a couple that is physically present in that state.

For example, it is customary in many U.S. subcultures, for example, to hold a wedding in the state of the bride's parents' domicile even if neither the bride nor the groom are domiciled in that state. But, a ceremonial wedding held in a state that recognizes common law marriage without the benefit of a marriage license would almost always be valid in all U.S. states (if otherwise valid), even if neither member of the couple resided there.

I am not aware of any U.S. state except New Hampshire where mere cohabitation and/or coparenting for a certain number of years establishes a common law marriage, even though law enforcement and journalists often describe couples in those circumstances as being common law married couples.

Functionally, common law marriage usually comes up in one of two fact patterns. First, it validates ceremonial marriages conducted with most formalities of a fully valid legal marriage license marriage with a formal wedding that have some technical defect in formalities; these are easy cases. Second, it establishes marital rights between cohabiting couples (often with shared children) who live together and act more or less like marriage couples who never have a decisive moment that is a wedding or marriage ceremony but end up considering themselves to be a married couple and deal with the administrative state and in their social lives accordingly. In both cases, common law marriage is usually a doctrine invoked generally avoid harsh consequences for wives who have sacrificed economically in reliance on a domestic couple relationship who lack meaningful legal rights do to a lack of marriage formalities.

N.B. Australia has a concept called de facto relationships that provide certain legal rights after more than two years of cohabitation for a limited period of time after the relationship ceases to exist in fact. These are not common law marriages in the senes of American law.

When Must A State Recognize A Marriage Valid Where Entered Into At The Time Entered Into

There is really only one exception to the rule that a common law marriage (or any other form of marriage) which was valid where entered into (even outside the United States) at the time it was entered into (even if that state no longer recognizes common law marriage) is valid in every state.

The exception is that a state does not have to recognize marriages which are barred by public policy in the state where the second marriage takes place (for reasons other than a lack of a marriage license), but not in the original state.

Basically, the marriages which a state does not have to recognize are:

(1) marriages valid where entered into that were polygamous when entered into (generally outside the U.S.),

(2) marriages where a spouse was a minor too young to marry at the time of the marriage by the recognizing state's standards if the common law marriage was not reaffirmed by conduct after both spouses were of age (Colorado recognizes common law marriages only when both spouses were at least eighteen years old at the time of the marriage or at some time afterwards in the continued common law marriage, and the validity of this unique limitation has not been legally tested),

(3) a marriage entered into without the voluntary consent of both spouses that was valid where entered into (generally outside the U.S.), or

(4) a marriage where the spouses were too closely related (although many states will recognize first cousin marriage that was valid where entered into even when first cousin marriage is not recognized in that state).

This public policy exception also previously applied to (5) same sex marriages valid where entered into but not in the recognizing state, and (6) to interracial marriages valid where entered into but void in the recognizing state. But, these two public policy reasons to deny recognition of a marriage entered into elsewhere have now been held to be unconstitutional in the United States.

Paternity Implications

The father of a child born while A and B were married, prior to the purported marriage of A and C would be presumed to be the father among A and B, even if this paternity was not noted on the birth certificate of the child because vital statistics bureau officials were not alerted to the existence of the common law marriage.

But, the rule in a majority of jurisdictions is that contrary to the general rule, the presumption that the father of a child born while A and C were purportedly married and at least one of them believed themselves to be married, was the person among A and C who did not give birth to the child, without other proof of paternity, would remain effective even after C learns that A and C are not married. Thus, a child of A and C would be legitimate, even though the marriage between A and C was void.

Tenancy By Entirety Implications

States with tenancy by the entirety are: Alaska, Arkansas, Delaware, Florida, Hawaii, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and Wyoming.

In those states, title to a residency owned by a husband and wife that would otherwise be a joint tenancy with right of survivorship would instead be a tenancy by entirety. A tenancy by entirety property is only subject to being used to satisfy judgments against both a husband and wife, rather than only against one of them individually and functions a bit like an unlimited homestead exemption as to money judgments against one spouse only.

Any property purported held in tenancy by entirety between A and C would actually be held in joint tenancy with right of survivorship by operation of law and the claims of a creditor against A or C but not both of them could be enforced against that residence in the one half interest of the person against whom the creditor had a claim.

Criminal Law Implications

A would guilty of the crimes of bigamy in most states (or under the Uniform Code of Military Justice if A is in the U.S. armed services which might also prosecute A for adultery), although a minority of them might recognize an intent requirement that would absolve A of criminal liability if A didn't realize that A and B were living in a common law marriage state.

A may or may not be guilty of the crime of perjury in connection with the marriage application depending upon whether A was aware that A and B were in a common law marriage.

Restitution might be awarded in a criminal proceeding resulting in A's conviction, in favor of B or C but probably limited to the legal fees incurred to establish the invalidity of the marriage to C.

The odds of a prosecutor pursuing a criminal case under these facts if B complained are probably about 50-50, given that the facts are quite blatant. Often both B and C would ask the prosecutor not to bring charges because both of them have an economic interest in A being able to make money while not in prison so their economic rights can be respected, and often, but not always, a prosecutor would respect those requests.

Of course, depending upon the state where the marriage license was issued and the time that the common law marriage of A and B was discovered by a complaining witness to the police or prosecutor's office, the statute of limitations for one or more of these criminal offenses may have run by the time the prosecutor is considering bringing criminal charges. Statutes of limitation for state criminal charges vary greatly from state to state.

Rights Of B Against A As A Spouse

B has the full rights of a spouse to support during the marriage, and, if either A or B seeks a divorce, to a property division and alimony and if there are joint children to child support and parental rights, with respect to A.

While every state has no fault divorce, in some states, fault is considered in property division and alimony and spousal support other than support for children during marriage, and this would work to the disadvantage of A.

Rights Of C In States Without A Putative Spouse Doctrine Against A

In states without a putative spouse doctrine, C has only the rights of an unmarried person with respect to A (e.g. rights arising from co-ownership and rights to child support and parental rights with respect to their joint children).

This said, it is conceivable in these circumstances that C might have a right to recover prejudice in C's economic position as a result of a purported marriage to A under a restitution doctrine, or under a common law fraud theory.

Rights Of B In States With An Alienation Of Affections Tort Against C

In a few states (including South Dakota, Mississippi, and North Carolina) B would have a right to sue C if C continued to carry on the purported marriage after C learned of the common law marriage of A to B, in an alienation of affections tort. The alienation of affections tort also exists in Hawaii, Illinois and Utah, but subject to greater limitations:

  • Illinois only permits actual economic damages to be recovered in alienation of affection actions. Thus, it prohibits non-economic damages like pain and suffering, and punitive damages, in these suits.

  • Hawaii would only allow B to sue C if C persistently overcame A's free will to establish the relationship with A (e.g. in a relationship that would constitute illegal sexual harassment in employment or an abuse of a fiduciary relationship by C) and B was without marital fault at the time.

  • In Utah, B could sue C only if "full responsibility for the breakdown of a marriage can be attributed solely to the conduct" of C (with the typical case being one where C was a priest or psychotherapist for A).

No states have both an alienation of affections tort and a formally recognized putative spouse doctrine.

Rights Of C Against A In States With A Putative Spouse Doctrine And For Social Security Benefit Purposes

In Colorado, Montana, Nebraska, Nevada, Texas, and Washington state and for purposes of Social Security benefits, C has the legal rights of a putative spouse from A for the period from the date of the putative marriage to C until C learns that A was in a common law marriage to B.

The rights of a putative spouse are essentially the rights that a legal spouse would have had for a marriage of that duration reduced, to the extent necessary to respect the rights of B as a true spouse. The relative rights of B and C would be balanced by the Court in an equitable manner in the Court's discretion, likely, in part, by imposing greater burdens on A than a single spouse alone would be entitled to in a divorce.

Note also that Colorado, Montana and Texas are the only U.S. states to have both common law marriage and to formally recognize putative spouse status.

Bankruptcy Priority Consideration

If the claims from B and C against A render A insolvent, and A files for bankruptcy, the marital claims of B will generally have priority as bankruptcy claims over the tort and putative spouse and contractual claims (if any) of C. But, child support claims of both B and C will have equal priority to the marital claims for alimony of B and will be superior to the property division claims of B.

Probate Considerations

If the common law marriage of A to B is discovered by C only after the death of A, then B has all of the rights of a surviving spouse (some of which are higher priority than creditors claims and some of which are lower priority than creditors claims) while C will have no spousal rights in the probate estate.

Any putative spouse rights or tort or contract claim or property ownership claim that C has against A at that time can be asserted in the probate case as a creditor or co-owner of probate property.

If A left a Will leaving A's estate in whole or in part to C, C will have rights an unrelated will devisee in the estate to the extent that there is anything left over after B's minimum marital rights and the claims of all creditors have been paid. The rights of a surviving spouse at death differ considerable from state to state.

If A left assets by virtue of non-probate transfers to C (e.g. joint tenancy and/or beneficiary designations attached to particular assets), generally C will be entitled to those assets, but the assets that C receives at A's death from A may be invaded by B to the extent that the probate estate assets of A's estate are insufficient to meet A's obligations to B at death as A's surviving spouse.

Joint Tax Return Considerations

If A and C filed as married filing jointly on their taxes, their tax returns would have to be amended for all such tax years for which the statute of limitations had not yet run (usually three year from the due date of that return) as single or head of household taxpayers with separate returns for each of them. Usually, this would result in additional income tax being due from A and C combined. The application of prior tax payments made and prior tax refunds received would be allocated equitably by an appropriate court if necessary because the parties could not agree.

Gift and Estate Tax Considerations

For estate tax purposes, B will receive any unused gift and estate exemption of A at A's death.

B will receive any assets received from A free of gift, estate and income taxes. Transfers at death to C from A will potentially be subject to estate taxation, and gifts made during life to C from A will potentially be subject to gift taxation. But, unless the sum of A's gifts and inheritances given to all people other than B during A's lifetime exceeded about $11.5 million, no gift or estate tax will actually be due at A's death.

Retirement Account Taxation

If A died with C as a beneficiary of a retirement account of A, or if C died with A as a beneficiary of a retirement account of C, the surviving person of A and C would not be able to roll over the proceeds tax free into a retirement account of the survivor.

Instead, the survivor of A or C who was the beneficiary of the retirement account of the decedent among A or C would have to take taxable distributions either over the life expectancy of the surviving person, or over five years, as the survivor elected.

Note On Authority

I am writing from memory and my summary notes from when I was a professor of estate planning and later a continuing education teacher for lawyers. I could find all of the statutory or case law authority to back it up, but it would take another two or three hours that I don't have to devote to this answer.

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  • +1. I suspect also states do not recognise a common law marriage between A and B that would otherwise meet the recognition criteria if either A or B was previously legally married to C (and not divorced / widowed, just separated).
    – abligh
    Sep 23 at 6:10
  • @abligh Certainly. Common law marriage is only possible between people who are legally capable of marrying.
    – ohwilleke
    Sep 24 at 0:06
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In most (all I believe) states, the marriage between A and C would be invalid because A and B did not get a legal divorce.

So for instance A and B live in a state that recognizes common law marriage. A and B hold themselves out to be a married couple. This is a legal marriage, even if A and B move to a different state, because all states recognize legal marriage from other states.

Because no state allows for an individual to be married to more than one spouse (polygamy), A and C cannot get a legal marriage, A and B must get a divorce (same legal proceedings as a traditional marriage).

So to directly answer your question, A and B remain married, A and C are not legally married. If the marriage certificate was obtained by lying to a court official, one or more (A/B/C) may be guilty of perjury.

https://www.findlaw.com/family/marriage/common-law-marriages-faq-s-what-states-recognize-common-law.html

https://www.nolo.com/legal-encyclopedia/question-end-common-law-marriage-28053.html

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  • Thank you. Do you have any authority to support this?
    – bdb484
    Sep 22 at 18:58
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    This grossly simplifies the differences among the states that recognize common law marriages in some form. I think New Hampshire, for example, only recognizes common law marriage for estate purposes, so unless, B died the common law marriage of A and B has no impact on anything.
    – ColleenV
    Sep 22 at 19:17
  • @bdb484 Added a couple references, there are more out there.
    – Ron Beyer
    Sep 22 at 19:26
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    @ColleenV, other than that specific example I can't find any where the state recognizes it as a legal marriage but it doesn't count.
    – Ron Beyer
    Sep 22 at 19:30
  • 3
    Yeah, I guess most of the differences are centered around whether A & B are actually in a common-law marriage. If the answer is "yes", then no matter which state they reside in, they have to get a formal divorce. (Even if the current state they reside in doesn't recognize common-law marriage, but they came from a state where the marriage was recognized).
    – ColleenV
    Sep 22 at 19:40

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