Un-Common Law Marriage

What is a Common Law Marriage?

Common law marriage is a relationship where a couple lives together for a long period of time and holds themselves out to friends, family and the community as “being married” without ever going through a wedding ceremony or obtaining a marriage license.

Common law marriage is older than the Liberty Bell. Common law marriage originated in England and was exported to the original thirteen colonies.  At that time in history, common law marriages had arguably good reasons – including formal wedding ceremonies being expensive to arrange, legal concerns about women having recognized property rights, and societal concerns about protecting children born “out of wedlock.” A common law marriage offered the status of a marriage and protections against these concerns.

For a state to find a common law marriage the following needed to be shown; The parties have to live together for an amount of time (which varies from state to state);

  • The parties must have the legal right to marry (which usually means over 18 years old, of sound mind and judgment, and not married to another person);
  • The parties must intend to be married; and
  • The parties have to hold themselves out to friends and family as being a married couple.

In today’s modern era, the reasons for common law marriage are expiring.  Only a handful of states still recognize common law marriage.  Nevada no longer recognizes common law marriage.

Property Distribution Problems Without a Marriage

Common law marriage’s decline is not without some concerns.   With more and more couples choosing to live together and to forego a formal marriage, there are legal issues when the separate.

Marriage creates a legal concept called community property.  Community property is any property acquired during the marriage.  When a divorce takes place, the court will divide the home, the cars, the banks, and the debts equally.

What happens when unmarried couples purchase a home together, purchase a car together, and then separate?  With no marriage there is no community property.  How does a spouse request half the house, half the car, and half the bank account? How does the court divide these assets?

Enter the 1970’s and Lee Marvin.  Yes, the famous actor Lee Marvin who starred in blockbuster movies like the Big Red One and Dirty Dozen.   Lee Marvin and Michele Triola Marvin couple for over a decade.  They purchased a home in Malibu.    They shared bank accounts.  They walked and talked like a married couple.  She changed her name to Marvin.  But they were never officially married.   They separated and she sued Lee for a divorce.  The case went to the California Supreme Court who decided unmarried couples could sue each other as though they had acquired community property.   The court coined the term “community property by analogy”.

The groundbreaking decision allowed unmarried couples to take their property disputes to divorce court.  By the early 1980’s Nevada adopted this rule of law.

Proving Community Property by Analogy

Generally speaking, the strongest evidence to show community property by analogy a written agreement.  But you will almost never find a written agreement.  Therefore, the courts will focus on the actions of the couple.

  • Did they live together?
  • Did they share a last name?
  • Did they hold a wedding ceremony?
  • Did they were wedding bands?
  • Did you each refer to each other as spouses?
  • Did they file joint tax returns?
  • Did they joint bank accounts?
  • Did you share household expenses?
  • Did you have and raise children together?

Dividing Community Property

Once community property by analogy is found the courts will divide the assets and debts the same as though they were married.   The court will divide all community property and community debts equally, absent a compelling reason.