Paul Horton: Common Law Marriage in Utah

Contrary to popular belief, only a few states recognize common law marriages. Many people still assume that by living together for a period and holding themselves out as man and wife, they attain the rights of being married. Often people think the magic number of years is seven.

The reality is that Utah does not recognize common law marriage. To have a valid marriage in Utah, you need to marry formally under the eyes of the law. Parties who cohabit or live together without a church or civil ceremony cannot generally attain the rights that a married couple does upon divorce.

Children born out of wedlock have the right to support by both parents, but spousal support will not be awarded, nor does either party have a clear claim to equitable distribution of assets. Without a marriage license, you are not legally entitled to inherit if your partner dies.

One way to have a common law marriage recognized is via the full faith and credit clause of the United States Constitution. If a couple lives in a non-common law state such as Utah, but visits a common law state and follows the requirements for a common law marriage in that state, and then returns to Utah, a claim of validity of the marriage may hold up in certain circumstances.

What is a Common Law Marriage?

Marriage is a legal union of two consenting people, and once married, their responsibilities and rights regarding property and support are outlined per state law. There are many people who believe that cohabitation for a certain length of time leads to you being automatically considered married in the eyes of the state — a term known as “common law” marriage. However, there are only a few states that actually recognize common law marriages:

Alabama
Colorado
District of Columbia
Iowa
Kansas
Montana
Oklahoma
Rhode Island
South Carolina
Texas
Utah

Some other states recognize common law marriages that were established before state laws abolished them, such as Georgia (before 1997), Idaho (before 1996), Ohio (before 1991) and Pennsylvania (before 2005). Kentucky recognizes common law marriages for workers’ compensation benefits only, and New Hampshire recognizes them for inheritance purposes only.

In all other states, including Utah, you must have had a ceremony and have a valid marriage license to be considered legally married. If you have had a common law marriage in one of the above states, but move to a state that does not recognize this type of marriage, the new state will still recognize it as a legal common law marriage as long as it was properly formed in the previous state.

The specific standards for what constitutes a common law marriage vary from state to state. Usually, the amount of time necessary for such a marriage to be considered legal is seven to 10 years.

What Type of Property Should Stay Separate After You Get Married?

After you get married, all of your property gets classified either as marital property (also known as community property) and non-marital property (also known as separate property). Marital property is any property gained after the marriage, while separate property is property that you owned before the start of the marriage.

There are certain types of property that you should take care to keep separate even after you are married. These include the following:

Shares in family business. If you have an ownership stake in your family business and the intent of your family is to keep control among immediate family members, then you should make sure that all of your shares of the business stay held in your name only. There is the option for your spouse to get a marital property interest in your share, or limit the claim your spouse has to the value of your business in a prenuptial agreement.
Gifts and inheritance. Even when acquired after marriage, financial gifts and inheritance are always considered to be separate property. If real property is included, however, you might want to take some extra steps to make sure that it is held only in your name.
Property from a prior marriage. If you wish to pass on property from a previous marriage to your children from that previous marriage, then you should make sure to keep it as separate property so that children in your new relationship do not have the same claim to that property.

Keep in mind that the classification of your property can change. If, for example, you use separate property for marital reasons during the course of your marriage, this property may become shared in the eyes of the law.

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