Loss of Consortium

As of the first of this year, Alabama has joined the majority of states that don't recognize new common-law marriages. That leaves only eight (Colorado, Texas, Iowa, Kansas, Montana, Rhode Island, Utah, and South Carolina) as well as Washington, D.C. that do. New Hampshire recognizes them only for inheritance purposes. As with some other states that no longer recognize these marriages, those established previously in Alabama will continue to be recognized under the law.

What Is a Common-Law Marriage?

There have been a lot of misunderstandings over the years about what constitutes a common-law marriage. Many people believe that any couple that has lived together for a period of years is in a common-law marriage. Seven is the number most widely cited. In fact, there is no designated time period. However, in states where these marriages are legally recognized, the couple is generally required to present themselves as a married couple to friends, family and the community.

While those in common-law marriages don't have marriage licenses, a divorce is required to end the marriage. That's where things can get tricky -- particularly when one person seeks spousal support, commonly known as "palimony" in these cases.

Break-Ups and Deaths Can Lead to Legal Battles

The person from whom support is sought can argue that the two were never actually in a common-law marriage. As one attorney notes, "Disputes over the existence of the marriage can become "he said/she said" contests, and court decisions focus on small details, such as whether the parties wore rings, whether they kept their finances separate, and whether their partner's relatives addressed them as "in-laws."

Another issue can arise if one of the partners dies without a will. The surviving partner can assert that the two were in a common-law marriage, while other family members may contest that claim. As with break-ups, courts will look at evidence of whether, in fact, the couple lived and presented themselves as spouses.

It's essential that if you live in a state where common-law marriage is still recognized (or even one where it was recognized when you and your partner began cohabitating) you take steps to ensure that your relationship is a common-law marriage or that it's not. This can prevent legal battles later on. Further, if you are in a common-law marriage, it's especially important to have a will and perhaps other estate planning documents in place. Many family law attorneys also handle estate planning, and can provide legal guidance on all of these issues.