Attorney Kimberley Keyes reviews how Massachusetts treats common law marriages from other states in divorce and inheritance cases.

Common law marriage is not available under Massachusetts law, but under the full faith and credit clause of the United States Constitution, Massachusetts must treat individuals who meet test for common law marriage in another state as if they are married. Fifteen states presently allow some form of common law marriage.

If two individuals meet the standards for common law marriage in one of these states before moving to Massachusetts, then Massachusetts must treat the marriage as legitimate.

As a result, common law marriages from other states impact Massachusetts law in the realm of divorce and, more commonly, the law of inheritance and intestacy. However, proving to a Massachusetts judge that a common law marriage existed in another state is not always easy. Below, we review the law of common law marriage in the United States, and how common law marriages from foreign states impact Massachusetts.

Table of Contents for this Blog

• Getting Married in Massachusetts: A Formal Process
• Common Law Marriage: The Eight States Where It Occurs
• Common Law Marriage: An Informal Process
• Common Law Marriage in Massachusetts
• Common Law Divorce in Massachusetts
• Common Law Marriage, Inheritance and Intestacy
• Full Faith and Credit Clause and Common Law Marriage

Getting Married in Massachusetts: A Formal Process

While a traditional marriage involves a proposal with a ring, engagement, wedding and honeymoon, not every marriage works this way. Others couples choose to elope. Still others quietly fill out marriage paperwork at their local Massachusetts courthouse. What all have in common is that they applied for and received a marriage license from the state. According to the state’s website, the process requires the following:

Both partners in a marriage must go together, in person, to any city or town clerk to fill out a marriage license application (also known as a Notice of Intention of Marriage) no more than 60 days before the wedding ceremony. In addition to paying the application fee (which varies by town), each person must bring proof of their age (a certified birth certificate, passport or other document as defined by MGL Chapter 207, Section 33A) and their Social Security number.

Once an application has been accepted, there is a three-day waiting period before you receive your marriage license. The license is then only valid for 60 days from the date the application was filed. In certain circumstances, one can seek to have the waiting period waived by filing a request for a Marriage without Delay with the probate court or district court in the city or town, or county where you originally applied for the license. If you are not married within the 60 days after your license was granted, you must apply for a new license.

Common Law Marriage: The 15 States Where It Occurs

In fifteen states and the District of Columbia, couples may be treated as married through a process known as common law marriage, which does away with the formalities of getting married and allows people to be considered married in the eyes of the law after several requirements are met. Massachusetts is not one of these states, which are:

1. Alabama (if created before January 1, 2017)
2. Colorado
3. District of Columbia
4. Georgia (if created before January 1, 1997)
5. Idaho (if created before January 1, 1996)
6. Iowa
7. Kansas
8. Montana
9. New Hampshire (for inheritance purposes only)
10. Ohio (if created before October 10, 1991)
11. Oklahoma
12. Pennsylvania (if created before January 1, 2005)
13. Rhode Island
14. South Carolina
15. Texas
16. Utah

The extent to which common law marriage rights are available varies from state. For example, in New Hampshire, common law marriage is only recognized in the context of inheritance. In Rhode Island, common law marriage is recognized by case law, but not by statute. In several other states, including Alabama, Georgia, Idaho, Ohio and Pennsylvania, common law marriage rights are limited to those who met the legal test before a certain date.

Although Massachusetts does not allow its citizens to become married through a common law process, the Commonwealth does honor common law marriages originating in other states. Indeed, the Full Faith and Credit Clause of the United States Constitution requires Massachusetts to acknowledge common law marriages that have happened in the eight states that allow them, and the Commonwealth must treat these marriages like a full-fledged, legally binding marriage.

Common Law Marriage: An Informal Process

The key difference between legal and common law marriage is that common law marriages occur without any state formalities, such as licenses, or formal ceremonies. In many states, legal marriage requires a minister or some other authorized person to declare the marriage. Even non-religious marriages generally require couples to go to a courthouse and fill out official state required paperwork to declare their marriage.

Common law marriage lacks these formalities. While each of the eight states has its own unique rules, two people can generally become married under the common law if the following requirements are met:

1. They are not married to someone else,
2. Neither one is under the age of 16,
3. Both people intend to be married,
4. Both people cohabitate for a sufficiently long period of time, and
5. Both people hold themselves out to the public and/or community as being married by, for example, referring to themselves as being married when talking with others, filing joint tax returns, and generally acting like legally married spouses would act.

Once these requirements are met, a couple may be considered married in the eyes of the law, even though they have not taken any formal steps to solemnize their marriage. A key variant among these states is often how long would be spouses must cohabitate to qualify for common law marriage, and the degree to which the state requires to tell others (i.e. “hold themselves out as”) they are married.

In Kansas, for example, no specific period of cohabitation is needed, but the parties must demonstrate that they “agreed” to be married:

The three requirements that must coexist to establish a common-law marriage in Kansas are: (1) capacity to marry; (2) a present marriage agreement; and (3) a holding out of each other as husband and wife to the public.

In Montana, a period of cohabitation is required under the law:

A common-law marriage is established when a couple: “(1) is competent to enter into a marriage, (2) mutually consents and agrees to a common-law marriage, and (3) cohabits and is reputed in the community to be husband and wife.”

In Rhode Island, the focus is on whether the parties truly intended to be married and act accordingly

The criteria for a common-law marriage are: (1) the parties seriously intended to enter into the husband-wife relationship; (2) the parties’ conduct is of such a character as to lead to a belief in the community that they were married.

Common Law Marriage in Massachusetts

Because Massachusetts family law does not recognize marriage under the common law – even if the parties meet all of the requirements of a common law marriage – a couple residing in Massachusetts will not be considered spouses without a marriage certificate. However, if the couple lived in one of the states that does recognize common law marriage prior to moving to Massachusetts, this changes matters.

Parties that qualify from common law marriage status in another state prior to moving to Massachusetts will be deemed spouses in Massachusetts under the Full Faith and Credit Clause of the U.S. Constitution.

However, a spouse seeking to prove he or she was common law married in another state faces some daunting challenges. Unlike judges in the original state, Massachusetts judges are unfamiliar with the legal standards and issues of proof involved in common law marriage cases. A party (or his or her attorney) must essentially teach a Massachusetts judge the foreign state’s law, then ask the Massachusetts court to apply the law.

Compounding the difficulty of applying a foreign state’s law, parties trying to prove common law marriage in Massachusetts face practical challenges, like evidence and witnesses being located in another state, and the corrosive impact that the passage of time tends to have on facts and evidence. Each year the parties reside in Massachusetts likely adds to the degree of difficulty a party will face if he or she wants to prove that a common law marriage occurred in a prior state.

Common Law Divorce in Massachusetts

In Massachusetts, we occasionally see a simple divorce case involving a common law marriage from another state. More commonly, we see parties seeking to extend the “marital coverture period” – i.e. the length of the marriage – by seeking to tack on a common law marriage to a legal marriage. The length of the marriage is often a critically important fact in Massachusetts divorce cases. Under Ch. 208, s. 34, judges must consider a variety of factors when determining the division of marital assets. It is widely agreed the length of the marriage is the most important of these factors.

The length of the marriage is also important in the alimony context. Under the Alimony Reform Act, Massachusetts law determines the duration (i.e. length) of alimony based on how long the parties were married. If an alimony recipient can tack on additional years through a common law marriage, this can extend the period he or she is eligible for alimony in Massachusetts.

Premarital Cohabitation and Alimony (Update 6/13/19)

Although common law marriage is not legal in Massachusetts, it is important to recognize that Massachusetts courts often consider premarital behavior in divorce cases. For example, if a spouse files for divorce after only two years of marriage, the outcome of his or her divorce is likely to be quite different if the parties lived together for ten years before getting married versus a 2-year marriage involving parties who never cohabitated before getting married.

The impact of premarital cohabitation can affect the division of marital assets, where Massachusetts courts are required to consider the length of the marriage when dividing assets. If a spouse can show that the parties shared money and assets before the marriage during a lengthy premarital relationship, this can impact the judge’s “length of the marriage” analysis. However, it is important not to overstate the value of premarital cohabitation in the asset division context. Even a lengthy period of premarital cohabitation may not be enough to generate an equal division of all assets – including those acquired before the marriage – if the duration of the subsequent marriage is brief.

Premarital cohabitation arguably has a bigger effect on post-divorce alimony. Recent Massachusetts appellate decision suggest that courts are increasingly willing to extend the duration of alimony based on premarital cohabitation. Although the premarital conduct of married individuals is easily distinguishable from common-law marriage, these legal trends are nevertheless important. What they tell us is that long-time unmarried partners – i.e. just the sort of folks who might feel they have a common law marriage – may gain some of the legal rights associated with a long-term marriage after being married for a relatively brief period of time.

Common Law Marriage, Inheritance and Intestacy

Although there may be an occasional divorce in Massachusetts involving a common law marriage formed in another state, the most common area of law affected by common law marriage might be probate and inheritance law. It is not unusual to learn that grandparents or elderly spouses never made their marriage official, despite holding themselves out for 40 or 50 year as man and wife.

If these situations, if one or both spouse dies without a will, their marital status (or lack thereof) could have a huge impact on inheritance under the laws of intestacy in Massachusetts. Moreover, unlike family law – which affords judges broad discretion to fashion fair and equitable remedies – probate law tends to be harsh and inflexible.

Proving that a deceased person was part of a common law marriage in Massachusetts carries several complex burdens. First and foremost, at least one major witness who could testify about the relationship is deceased. Second, the common law marriage – if it happened at all – had to have occurred in another state where common law marriage was legal, like Rhode Island or New Hampshire. If the spouses spent five years in one of these states before residing in Massachusetts for 35 years, it could be very challenging to present credible evidence from the 5-year window needed.

Lastly, it should be noted that probate and intestacy cases where a foreign common law marriage comes often involve contested inheritances. This often means that the very best witnesses for proving a long ago common law marriage – i.e. the relatives of the spouses – are often the ones battling over an inheritance. Thus, the credibility of the very individuals who would be in the best position to offer evidence of a long past common law marriage may be compromised by their own financial interest in the litigation. Such cases can be very challenging indeed.

Full Faith and Credit Clause and Common Law Marriage

Article IV, Section 1 of the U.S. Constitution, also known as the Full Faith and Credit Clause, requires that all states in the U.S. respect the “[P]ublic Acts, Records, and judicial Proceedings of every other State” by giving that state all of the power it would have if it had been the law within its own border.

The purpose of the Full Faith and Credit Clause was to prevent states from refusing to acknowledge or enforce the laws of a sister state. Failing to honor the laws of neighboring states would have created conflicts between states and allowed people to violate one state’s laws and flee to another state to escape their legal problems. Thus, the Founding Fathers decided it would be necessary and practical to require states to enforce the laws of sister states, as well.

One of the most common applications of the Full Faith and Credit Clause is to marriage. When parties get legally married – whether through the traditional process or under the common law – in any other state in the country and then they move to Massachusetts, the Commonwealth must recognize that marriage even if it would somehow violate one of its own laws.

This is precisely why the Full Faith and Credit Clause was one of the many legal arguments used during the legal battle over same-sex marriage: Same-sex couples living where it was illegal to marry would travel to a state where it was allowed, get married there, and then return home. Indeed, the Clause provides the foundation for many interstate laws relating to family law, including the Uniform Child Custody Jurisdiction and Enforcement Act, Parental Kidnapping Prevention Act, and the .

The Full Faith and Credit Clause requires Massachusetts to honor the marriage laws of sister states. Moreover, with common law marriage legal in Rhode Island and New Hampshire (as applied to inheritances), it is not unusual for Massachusetts courts to encounter cases where a past common law marriage might be involved.

About the Author: Kimberley Keyes is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Kimberley Keyes today at (781) 253-2049 or send her an email.