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Common Law Marriage: Be Careful!

Back in the early days of our country, when justices of the peace and clergy were harder to find and the population more spread out, there arose the concept of a "common law" marriage. The basic idea was that if a man and a woman held themselves out to the community as married, and considered themselves to be husband and wife in all their dealings with the public and themselves, then the law would recognize them as such.
At the present time, only about a dozen states still recognize a common law marriage formed under their own laws. However, under the U.S. Constitution's "full faith and credit" provision, a common law marriage valid in any one of these dozen states will be recognized as a legal marriage in all of the other states.
Unfortunately, because there is no piece of paper to point to, whether a couple will be recognized as married for purposes of state law (and hence federal law, which follows state law on this determination) is a facts and circumstances test.
Here are some of the factors that judges have looked at in making a determination that a couple were married at common law:

• living together
• holding themselves out as married to the general community
• exchange of wedding rings
• attending holiday celebrations and family gatherings together
• traveling together
• filing income taxes marked as married individuals
• completing medical records as married
• sharing domestic responsibilities

Here are some factors that weighed against a couple being considered in a common law marriage:

• the female's reference to her partner as her "boyfriend" or "partner" to emergency medical personnel
• failure of one partner to indicate she was married when applying for a mortgage
• holding themselves as married only to a small circle of friends and co-workers but not the general community

Because tax returns are signed under the penalties of perjury, they are particularly persuasive to a court in making this determination.
Why is this important? There are many legal consequences, rights, and responsibilities that depend on a determination of marital status. For example:

• A surviving spouse is entitled to a certain percentage of a deceased spouse's estate if the spouse died with no will; if declared to be unmarried, that surviving "spouse" gets nothing.
• A surviving spouse is entitled to a certain percentage of a deceased spouse's estate if the spouse had a will but omitted or left little to the other "spouse"; this is called an "elective share" and could be as much as 50% of the deceased spouse's estate.
• With larger estates, only a legal spouse can claim the unlimited marital deduction, saving thousands of dollars in estate taxes.
• Only legal spouses can file income taxes as "married filing jointly."
• Only a legal spouse would have certain rights and access to medical records under federal and state laws.
• Only a legal spouse is entitled to the Social Security payments of a deceased spouse.

Sometimes it's actually better not to be determined to be married. For example, a healthy spouse's own assets must be "spent down" on a disabled spouse residing in a nursing home, before Medicaid coverage of the nursing home costs will be allowed. If the couple is not married, then only the nursing home partner's assets are counted, protecting an unlimited amount of assets of the healthy partner.
As you can see, important monetary and other benefits turn on the legal determination of whether there was or was not a common law marriage. In most cases there are benefits to the spouse; in some cases there are disadvantages. In any case, this should be thought through by the couple so that they do not get caught unaware! If in doubt, the couple should go downtown and sign that little piece of paper indicating they are officially married. That would end all questions!

NOTE: For more information on this topic and other Medicaid planning techniques, which describes an exciting new 256-page book written by attorney Heiser, "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets." You don't have to go broke to get Medicaid to pay your nursing home bills, you just have to know the rules and planning techniques. For the first time ever, you can learn the inside secrets of high-priced estate planning and elder law attorneys.

BC Common Law couples to get Marriage Rights

Since we’re on the topic of marriage and weddings, I thought I’d to a post on how in my province (BY THE WAY HAPPY BC DAY EVERYONE!), there have a few changes proposed to family law.  A few weeks ago, it was reported that BC Common Law couples are going to get marriage rights. The government is open to comments from the public until early October, and will likely change the Family Law act in 2011. This is pretty huge. I did a post on cohabitation agreements and common law separations a few months ago, and I was surprised to learn that common law couples do not get the same rights as married couples in British Columbia… I always thought that if you were together for two years, and you split up, then you get equal division of assets.  The actual case is that if you are a common law spouse and you split up, and you never contributed rent for his or her mortgage or anything to the relationship, then you walk away with nothing.
The government proposes to change all this, considering that 40% of British Columbia marriages end in divorce before the 30th anniversary (that is really sad, IMO). They believe that these changes should help protect women and children who are in common law relationships.
What do you think of these changes?  Do you think they are good or bad? I know that in each province and each state in the United States, it is different.  It’s worth the time to check out what the common law rules are in your jurisdiction if you plan to live together common law.
In any case, I think that if you want to protect your assets in the event of separation, then it is a good idea to discuss with your partner the idea of written agreements if you want to opt out of this new change. Again, I know talking about the idea of common law separation isn’t sexy, but it’s necessary.  I think that this new law change is an opportunity for us to talk to our significant others about these practicalities for ‘worst case scenario’ planning. 

Common Legal Penalties For Computer Crimes

Computer technology is becoming increasingly more advanced and there is a lot of money to be made surrounding it. Where there is more money to be made, there is more criminal activity, punishable by law. The Information Act of 2000 states that there should be different penalties for different types of technological crimes. The following are common legal penalties for computer crimes.
Telecommunication service theft involves the unlawful obtainment of any telecommunications technology. This crime is punishable with a heavy fine and an undefined term of imprisonment. The legal consequences vary depending on the severity of the theft. Communications intercept crime is a Class-D crime that involves the interruption of communication technology. It is punishable by one to five years in prison along with a fine and can include other infractions such as offensive material dissemination, telecommunication piracy, and other cyber frauds.
When someone changes a source code on a computer program or website, this is called computer source tampering. Those found guilty of this crime can face up to three years in prison, or a fine. Computer hacking also carries a prison sentence of up to three years.
Though all technological crimes are taken seriously, government computer systems hold the most serious consequence when violated. Trying to obtain access to a system protected by the government is a very serious crime that can have major consequences on government operations. Anyone found guilty of tampering with a government computer faces ten years in prison and a major fine.
Protecting computer technology crimes is extremely important because the world now relies heavily on the use of computer systems to operate. With one of the most common legal penalties for computer crimes being a prison sentence, the legal system has been very effective in putting new laws in place with the changing technology. Technology crimes are taken very seriously and punished harshly.

Civil Law – Common Law Versus Statutory Law

If there is one area that confuses most people's rights when it comes to the right is the distinction between common and statutory law applied in civil litigation and, indeed, the legal world as a whole. In this article we take a stab at what the difference in a way that is very understandable.

The first start is with a definition of each. Ironically, it is also the easiest way to understand the differences. The common law is aCollection of case law, the Court has decided to be one of. Statutory law is a collection of more hard and fast that the body created by legislation and the signature of a manager. Some examples in the explanation of each.

Let's say I have to deliver a contract with another part of me a number of products at a specified price. We get in a fight. I sue to enforce the agreement. I am in California, is the other party in Arizona,The products are actually manufactured in China and are in a port warehouse in Seattle, Washington store. Where should the lawsuit be filed? The issue concerns a question of competence. I will not tell me the answer, but the final decision will be the basis of years as courts have interpreted through multi-state problems. This case will be interpreted in previous published opinions, so that consistency. This is a common law Nutshell.

Consider an example of a law office. Medical Malpractice is a leading personal injury claim. The doctors are about the cost of insurance claims, because it makes it almost impossible to consider the practice of medicine. Legislature required and is a law that says every sentence to $ 750,000 will be cut off one of medical malpractice shall not exceed. If a Governor Executive Leader [or President], this law is signed'Law and the courts must follow it.

Both types of law are subject to review by the appellate courts and ultimately the State Supreme Court or Federal Court. If said court found the lawunconstitutional, is valid to explain. Of the two, the law office successfully challenged the most.

Is a Common Law Relationship The Same as Marriage in Ontario?

There are many misconceptions floating around in the general population regarding what is commonly referred to as “common law relationships” and about the legal rights and responsibilities that common law partners have with respect to one another upon relationship breakdown. If you are in one of these relationships it is important to know that they are not the same as a marriage and that your rights and responsibilities upon relationship breakdown are different than they would be if you were legally married. This is why in some cases it is a very good idea to enter into a cohabitation agreement with your partner in order to define your rights and responsibilities upon relationship breakdown in a way that is fair to you both, particularly if you own valuable property in your own name that you owned acquired on your own without the assistance of your partner.


The greatest misconception regarding common law partnerships is how it is defined. Many people seem to think that you are “common law” after only one year of cohabitation. While this is true under some legislation, such as the Federal Income Tax Act, for the purposes of the support provisions of the Ontario Family Law Act, spouse is defined as a person who is married or thinks they are married as well as:


either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or


(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child


What this means is that a common law partner does not have any obligation to support his or her partner (i.e. pay spousal support) until they have lived together for three years or more or have a child together. There is also a limitation period imposed on spouses applying for spousal support under the Family Law Act of three years from the date of separation, whereas there is no corresponding limitation period on applying for spousal support pursuant to the Divorce Act, which you can only do if you are legally married.


Another common misunderstanding is that common law partners share property upon relationship breakdown the same way that married people do upon marriage breakdown. There are two very important distinctions in this regard that you should be aware of if you are living common law. Firstly, the home that common law partners reside in together is not considered to be a “matrimonial home”, and as a result a party does not have an automatic right to share in the equity of that home or possession of the home under Part II of the Family Law Act if he she is not a legal owner (i.e. registered on title). Furthermore, there is no automatic right to share in any of the property of the other person upon relationship breakdown unless you have a legal ownership interest in the property.


When two people are legally married and their marriage breaks down, their property is “equalized” by virtue of s.5(1) of the Family Law Act which states that, “when a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them” . Equalization of Net Family Property is a process whereby a person’s net worth (i.e. assets – debts) at date of separation is compared to their net worth (assets – debts) at date of marriage. The change in each person’s net worth as of date of separation is their “Net Family Property”. The person who’s net worth has increased the most over the span of the marriage is ordered to pay half of the difference of the parties’ net worth’s as an equalization payment. However, the definition of spouse in Part I and II of the Family Law Act that deals with property and matrimonial homes, includes only persons who are legally married, or who thought that they were legally married. It does not include common law partners. This is why there is no automatic right for common law partners to share in the value of the other’s property upon relationship breakdown.


The fact that common law partners are treated differently than married partners when it comes to property division was challenged by a women in Nova Scotia, (where they have very similar family legislation that does not include common law partners in the property provisions) as being contrary to s.15(1) of the Charter of Rights and Freedoms that guarantees equality under the law. The Supreme Court of Canada surprised everyone by finding that the differential treatment was not discriminatory. The reasoning given for this is that:


Although the courts and legislatures have recognized the historical disadvantages suffered by unmarried cohabiting couples, where legislation has the effect of dramatically altering the legal obligations of partners, choice must be paramount. The decision to marry or not is intensely personal. Many opposite sex individuals in conjugal relationships of some permanence have chosen to avoid marriage and the legal consequences that flow from it. To ignore the differences among cohabiting couples presumes a commonality of intention and understanding that simply does not exist. This effectively nullifies the individual’s freedom to choose alternative family forms and to have that choice respected by the state.

In other words, the Supreme Court said that people who are living common law have chosen not to marry and many have purposely chosen not to take part in the property division that applies to married couples. Based on the number of people I have spoken to that think that common law people are treated the same upon relationship breakdown as married people, I suspect that they did not really chose not to share in their partner’s property upon relationship breakdown.


There are ways of making a claim against a common law partner’s property using “equitable relief” claims such as constructive and resulting trust claims. The essential principle behind these claims is that if you have lived together for many years and have contributed both emotionally and financially to the other party’s property, it would unjustly enrich the party who is the sole owner of the property to allow him/her to walk away from the relationship without compensating the non-owner spouse for their efforts. These claims are very difficult to make out and do not guarantee you 50% of the value of the property in question.


There is one respect in which common law and married persons do not differ, and that is where it comes to their rights and responsibilities with respect to their children. In fact, even if you have never cohabited or married, you are legally responsible to support your children and have equal rights to custody and access of your children. This is thanks to the Children’s Law Reform Act that sought to even out the playing field as between children who were “legitimate” and children who are “illegitimate” so as to ensure that they are equally supported and cared for by both parents.


Nevertheless, if you are in a common law relationship or are contemplating living with somebody you should consider consulting a lawyer to discuss the possibility of negotiating a cohabitation agreement with your spouse that would protect you both in the event of relationship breakdown. Nobody wants to think about separating, but the sad reality is that common law relationships are generally less stable and of shorter duration than marriages and there is a good probability that the relationship will end at some point. You owe it to yourself and to your children to plan appropriately for the future so as to ensure that you will be financially secure with or without your common law spouse.

Is Ohio (and the common law) not tough enough on negligent vehicular homicide?

The question in the title of this post is one inspired by this local story from theColumbus Dispatch, and one I am now planning to ask first-year students in my Criminal Law section later this month.  The story is headlined "To widow, sentence highlights unfairness: Tough penalty urged in vehicular deaths," and here are the details:

Richard Crabtree was killed Feb. 1 in a car accident.  He left behind a wife and three children. The police found the witnesses to her husband's death and brought charges against the young man who ran a red light and killed him.
The prosecutor secured a conviction on the most-serious charge. The judge's sentence was as tough as the law allows. Jenny Crabtree knows and appreciates all of that. But in the matter of the state of Ohio v. Steven J. Tirpak, she also will argue that justice -- for her, her husband, their three children -- was not served.
"Our lives are totally destroyed, forever; and he got 90 days in jail," the Westerville woman said.
Richard Crabtree left work early on Feb. 1 to meet his two older daughters, now 6 and 10, at the school-bus stop. Just before 4 p.m., Crabtree and a driver ahead of him were in the middle of the busy intersection of Polaris Parkway and Worthington Road, waiting to turn left to head north on Worthington.  The light turned red.
"Mr. Crabtree had already entered the intersection," Detective Sgt. Steve Fridley of the Westerville police said.  "You have the right to clear that, once everything's stopped.  The other vehicle, for whatever reason, ran the red light."
The other vehicle was driven by Tirpak, then a 20-year-old Galena man with a history of speeding and criminal convictions for such offenses as theft and possession of drug paraphernalia.
Tirpak never accepted blame for the crash, Fridley said.  He insisted the light was yellow when he broad-sided the 46-year-old Crabtree, killing him.  "Fortunately for us, we had multiple witnesses" who verified the light was red, Fridley said.
Tirpak wasn't under the influence of drugs or alcohol, and he had a valid driver's license.  A review of the evidence left police with two charges, vehicular homicide and vehicular manslaughter. Both are misdemeanors.
In June, Tirpak pleaded no contest to vehicular homicide, which is the more-serious charge and is punishable by up to 180 days in jail and a $1,000 fine.  Judge David P. Sunderman found him guilty in Delaware Municipal Court.
Sunderman, who declined to be interviewed for this story, sentenced Tirpak last month to 180 days in jail with 90 days suspended, which allowed the court to have further control over him by placing him on five years of probation.  He also was fined $1,000, sentenced to community service and lost his driver's license for five years.
"He got the max," said Peter Ruffing, city prosecutor for Delaware. "The judge threw the book at the kid," Jenny Crabtree acknowledged.
When the crash occurred, she prayed that the other driver would be remorseful and otherwise law-abiding.  She could make peace with that.  But Tirpak has a record of not abiding the law, and he did not apologize. He did not even look at her as she talked about her loss at sentencing. "What I got was the exact opposite," she said....
Because of her experience, Crabtree intends to lobby state lawmakers to strengthen vehicular-homicide punishments in Ohio.  Ruffing would not speak about the Tirpak case in any detail.  He said it is his job to uphold existing laws, not to criticize them or lobby that they be changed, as Crabtree hopes to do. "That's certainly an understandable position by a widow," he said....
Crabtree said the six months since her husband's death have been financially and emotionally crippling. She looked into a civil lawsuit, but Tirpak has no assets.  She can expect only $12,500 from his insurance company. 

There is a bit of an anachronism in the question in the title of this post because vehicular homicide crimes were largely unknown to the early common law (even though it was surely possible to kill a pedestrian while driving negligently a horse-and-buggy).  But the common law did generally confront the issue of merely negligent killings and generally concluded [in the US] that such killings should not and could not lead to any homicide charges.  [In most US jurisdictions before modern reforms, recklessness or extreme negligence was needed to make a matter criminal.[
Because Ohio has statutory provisions that make reckless killings a felony, I am assuming that prosecutors in this case concluded that they would only be able to prove that the deadly driver Steven Tirpak was driving negligently when he caused a fatal accident.  [A reader rightly notes that Ohio still requires a form of gross negligence for criminal liability, though the standard is set forth in language not quite as strong as was at common law.]  That suggests that the victim's family should be at least by thankful that Ohio has not merely codified common-law homicide rules.  If it had, it is possible Mr. Tirpak might not have been subject to any criminal prosecution at all.

Requirements for a Common-Law Marriage

Many people believe that if you live with your significant other or even just a roommate for seven years, you may have entered into a common-law marriage.

The truth is that common-law marriages are not recognized by many states and that two parties cannot unknowingly enter into a common-law marriage. Read on to find out common-law marriage requirements.

COMMON-LAW MARRIAGE REQUIREMENTS

Common-law marriages don’t just occur when people live together for an extended period of time. Specific requirements must be met to have a valid common-law marriage.

1) Your State Must Recognize Common-Law Marriages

Only a handful of US states see common-law marriages as valid. This includesAlabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and Washington, D.C.

A few other states recognize common-law marriages, but only if the common-law marriage was entered into before a specific date. This includes:

• Georgia — Jan. 1, 1997
• Idaho — Jan. 1, 1996
• Ohio — Oct. 10, 1991
• Oklahoma — Nov. 1, 1998
• Pennsylvania — Jan. 1, 2005

In addition, all other states must recognize common-law marriages that were contracted in areas where common-law marriages are legal and valid.

2) You Must Live Together

It seems like the most obvious of the common-law marriage requirements, but cohabitation is an absolute necessity of the common-law marriage.

The amount of time spent living together required to qualify for a common-law marriage varies from state to state.

3) You Must Consent to Be Married

It is a popular misconception that live-in lovers or even just live-in friends can just find out one day that the government considers them a married couple. A marriage — even a common-law one — cannot be entered into without the competent consent of both parties.

4) You Must Have a Reputation as Husband and Wife

Many of the states that recognize a common-law marriage have requirements that the couple must already act as though they were married. This means filing joint tax returns, sharing a surname and referring to each other as husband and wife in public and private.

5) You Must Meet Other State Marriage Requirements

All common state marriage requirementsA must be met for a common-law marriage to be valid. The legal age to get married varies from state to state, but both parties must meet age requirements before their common-law marriage is recognized. This is usually not a problem, as people spend years living together before trying to get their common-law marriage validated.

Another common-law marriage requirement is that both parties must be single. A common-law marriage is not valid if one of the parties was legally married to somebody else when the common-law relationship began.

Though more and more states are making same-sex marriage legal, only a woman and a man can enter into a common-law marriage.

ARE THERE COMMON-LAW MARRIAGES IN OTHER COUNTRIES?

The common-law marriage actually originated in medieval England. Peasants and others living in remote areas often couldn’t travel to where a religious official or justice of the peace could officially marry them. Rules were instated to recognize rural cohabiting couples.

While many countries do not recognize common-law marriages, they are still valid in countries like Canada, England, Wales and Scotland. Australia and Israel also recognize variations of common-law marriages.

Common-law marriages truly aren’t that common. The requirements change frequently, as many governments view common-law marriage as an antiquated concept. Check your specific state or country’s requirements to see what kind of relationship qualifies as as common-law marriage.

Medieval establishment of Common Law in England

The emergence of Common Law in England is one of the most important features of its history. If such a Common Law had not developed we would still be ruled in the feudal manner which was adopted during the piecemeal settlement of the Normans, following William the Conqueror’s victory at the Battle of Hastings in 1066. The mid-late Medieval period saw the beginning of such legal developments for the country, and as such is one of the most interesting periods in England’s history. It is also quite a subtle period to examine, as although we can pick out important people and events, there are no discernible turning points.
The two main and gradual changes that we can follow are the evolution of Laws from oral to written, and from feudal to central. So where precedents in court had previously been based on spoken word, people began recording cases and Laws instead, and where Law had been the domain of the feudal Lords, who ruled over certain areas of land and maintained Law only over their vassals and possesions (for example horse liability), it became the priority of the central government of England.
The most important man in the development of these processes was King Henry II, who ruled England from 1154 to 1189. He increased the number of his own men who visited each county to assist the local sheriffs in their legal duties, he vastly improved the written records of legal activity, and his rule saw for the first time the instigation of a jury of ’12 lawful men’.
What Henry II did was not revolutionary, as Henry I before him had sent out a writ in 1108, which officially established royal jurisdiction over all legal matters in England. But what Henry II did was to put many of Henry I’s writs and ideas into practice, and he did this so efficiently and with such great aplomb that the monarchs who ruled after him found that their path to a Common Law was well paved.

The Question of Conservative Foundations

The natural rights philosophy currently holds pride of place as the basis for conservatism. This book argues for an alternative -- common law -- and does so by exposing the predicament into which the natural-rights philosophy has put us. America's constitutional foundations are examined in terms of the natural rights philosophy in which they were framed, and the inability to restrain government is discovered to be the result. The separation of powers was the fruit of natural-rights philosophy, and has been found wanting. What is needed is a restoration of a truly independent legal order and judiciary, rooted in the common law. The separation of powers has given us a nominal, not a real, independent judiciary.

Some of the issues addressed in Common Law & Natural Rights:

• Russell Kirk's vision of conservatism and how it differs from that of many modern conservatives
• Mark Levin's book, Liberty and Tyranny, and how it exemplifies some of conservatism's shortcomings
• Friedrich Hayek's neglected, masterful critique of contemporary constitutionalism, including the US Constitution
• Friedrich Julius Stahl's anticipation of Hayek's argument
• Charles Howard McIlwain's thematic distinction betweengubernaculum and jurisdictio brought to bear
• Gottfried Dietze's forgotten critique of overbearing democracy
• Michael Oakeshott's analysis of the civil condition
• Herman Dooyeweerd's idea of common law as the product of Rome
• the parallel between Roman and English law
• Alan Macfarlane's origins of English individualism in context
• adjudication versus legislation as the source of law
• the value and failure of American judicial review
• credit and debt as the primary factors in law and economics
• the credit crisis as the latest example of egregious government intervention
• the religious root of the welfare state
• the religious root of the anti-capitalist mentality
• the role of atonement as the basis of the state and capitalism
• Thomas Chalmers on the entitlement mentality
• Edmund Burke on natural rights

Common Law & Natural Rights takes us beyond a simple affirmation of the virtues of self-reliance and the limited state, to the philosophical foundations upon which they must be grounded, so as to make them possible and defensible. It grounds conservatism in the historical reality of received institutions, where conservatism belongs, while maintaining a strong connection to higher law, to which conservatism must always point. Well-intentioned defenders of natural rights owe it to themselves to apprise themselves of this argument.

Fact Or Fiction - Rhode Island RI Common Law Marriage

Fiction- If I live together with my boyfriend for over seven years then we are automatically common law married.
This is a huge urban myth that is completely and totally false! In fact, a couple could live together for 35 years in Rhode Island and still not be common law married! However, another couple could live together for 7 days and be married.
How can this be true??
This article only applies to Rhode Island. Also, a vast majority of states do not recognize common law marriages. Please contact Rhode Island divorce and family law lawyer, David Slepkow, to help evaluate whether you can successfully establish a common law marriage in Rhode Island.
In order to establish a common law marriage in Rhode Island, a couple must have "seriously intended to enter into the husband-wife relationship." Demelo v. Zompa, 844 A.2d 174 "The parties conduct also must be of such a character as to lead to a belief in the community that they were married." Demelo v. Zompa 844 A.2d 174 "The prerequisite serious intent and belief is demonstrable by inference from cohabitation, declarations, reputation among kindred and friends, and other circumstancial evidence." Demelo v. Zompa, 844 A.2d 174
A crucial element to common law marriage is whether a couple holds themselves out to the community as husband and wife.
I believe that Courts look to several factors in determining if there is a common law marriage. The Court looks at a totality of the circumstances rather than focusing on any one particular factor exclusively. In other words, if one of the following factors doesn't apply there could still be a common law marriage!
Establishing a common law marriage in Rhode island is analogous to building a brick wall. A single brick alone will not build the wall! Pulling out any particular brick will not cause the wall to fall. Similarly, No one factor usually creates a common law marriage. (perhaps, and I emphasize perhaps, the only exception to this is filing married for your federal income taxes) The absence of a single factor usually does not defeat a common law marriage! (The exception to this may be lack of cohabitation but that is not set in stone. I emphasize may be an exception depending on the facts)
The court may look at whether the alleged wife took the husband's last name. The woman's use of husband's last name indicates that the parties were holding themselves out to the community as married and exhibiting a serious intent to enter into a marriage. If a woman takes a man's last name and uses the name in public then that will go a long way in establishing a common law marriage. A woman not taking her significant other's last name will not be fatal to establishing the marriage. Judges are keenly aware that in this day and age, it is common for a woman to use her maiden name after a valid marriage.
The Court will look to see if the parties introduce each other as "my husband" or "my wife" in social settings or when appropriate. The Courts are well aware that married couples usually do not introduce their spouse by his / her first name.
Medical treatment forms, financing applications and other forms may be important to see whether the parties listed the other person as their spouse or even admitted that there was a marriage.
The length of time that the parties lived together may be very relevant . An economic partnership between the parties is also very significant. Joint bank accounts, joint ownership of property, joint accounts, beneficiary designations on retirement plans, insurance applications could all be bricks in a wall of establishing a common law marriage. Please note that these types of factors (such as having a joint bank account together) alone will NOT establish a common law marriage! In this day and age it is not unusual for boyfriends and girlfriends to live together with joint bank accounts or even, perhaps, owning property together without intending to enter into a marriage. However, the above mentioned factors take on importance in conjunction with other significant factors set forth in this article.
There are a myriad of other factors that could be very important in determining whether or not there is a common law marriage. This includes whether a diamond ring or other ring was given and what hand the ring was worn on.
This article in no way establishes all the factors that could be important.
If the parties cannot agree that there was a marriage then witnesses will need to testify in Court to establish a belief and reputation in the community that the parties were married. In other words does your social circle (friends, family, acquaintances ) believe that you and your significant other are married?
One of the most crucial elements of common law marriage is the tax status that the parties claim on their federal and state income tax forms. If the parties filed married filing jointly or married filing separately then some judges would say that the common law marriage is established. A federal tax document is a very significant document and most people know the importance of being truthful when filling it out. I would tend to agree that if the parties filed their taxes as married then they are probably in fact married! If the parties filed as married filing jointly and then one of them denies the common law marriage then they are in a perjury trap. Either they lied to the IRS or they are lying to the Court. Filling single will not be helpful to establish a common law marriage however it is not fatal.
How could a party be common law married after 7 days? Hypothetically, boyfriend and girlfriend invite all their friends to a party which is not officially a wedding. No marriage certificate is sought or obtained by the couple. However, at the party the couple announces to all their friends and family in attendance that they are married, they move in together the next day. The girlfriend puts him on her health insurance. They are probably married by common law after just a week!
If you believe that you are common law married and want to terminate the relationship then you need to file for divorce in Rhode Island family Court seeking to establish the appropriate elements.