What Is Common Law Marriage?
It is a common myth that you need to have a wedding and obtain a marriage license for a marriage to occur. In fact, there is something known as a common law marriage where parties may marry without formalities. However, the common law is not supported in all states, and for good reason. So what is a common law marriage?
Common law marriage may occur when two people live together and hold themselves out as a married couple for a certain period of time. These requirements vary by state. In Nevada, the requirements for a couple to be considered married by common law are:
- both must be eighteen (18) years or older at the time of the marriage,
- parties must be free to marry (i.e. they are not married to anyone else),
- must have cohabited in the state of Nevada ,
- and must hold themselves out publicly as married.
Note that if the party has been married in the previous four (4) months, then the person must have obtained a divorce prior to the common law marriage and the parties cannot be cousins.
It needs to be emphasized that most jurisdictions don’t necessarily like common law marriage and have either abolished it entirely or have put the bar higher to reach that status. For instance, the state of Nevada generally views marriage as a formal institution. The common law marriage statutes have been so limited that parties are rarely married by common law unless in rare circumstances. The law is actually so limited that Nevada courts have stated that it is almost impossible for couples living in the same household to be deemed married.
Nevada Law And Common Law Marriage
Nevada does not recognize common law marriage. The Nevada Revised Statutes (NRS) 122.062 specifically sets forth the legal parameters for lawful marriage within the state. It states that "a license and registration certificate issued pursuant to the provisions of this chapter is required to legalize every marriage which takes place in this State."
As for legal precedents, the Nevada Supreme Court has outlined the only way a couple can enter a common law marriage in Nevada: If there was a common law marriage in another state that recognized it, then it would most likely be recognized here. However, the stipulation is that the contract between the married couple must have existed in a state where the informal relationship was legal, and the two had decided to make a commitment of marriage to and with each other. The court must then look at the "solemnization" of the marriage, which means the tangible steps the couple took to put themselves in the marital contract.
Couples who think they have a common law marriage should be advised that just on the grounds of having lived together for a sufficient period of time does not mean they are legally married. Even if they got a statement signed by their family and friends saying they are married, even though the neighbors think they are married, a couple needs to go through the proper legal channels to satisfy the state before they can be legally bound.
Other Legal Options For Unmarried Couples In Nevada
Even though Nevada does not recognize common law marriages, there is a form of registered relationship between same-sex and opposite-sex couples, called domestic partnerships. Domestic partnerships are specially designed legal arrangements that provide couples who are unable to marry due to the prohibitions in their home states to legally commit to one another.
In 2009, Nevada revised its Family Law Article to allow same-sex and opposite sex couples to register as a domestic partnership. Domestic partnerships may be established by filing a Declaration of Domestic Partnership (PDF) with the Nevada Secretary of State’s Office and meeting the following requirements:
As a registered domestic partnership, you may have the same legal rights and benefits as married couples in Nevada when it comes to things like property rights, inheritance, intestate succession, insurance benefits, guardianship, adoption, juvenile proceedings, dissolution proceedings, medical leave, tax reporting, pension benefits, and wrongful death awards.
To dissolve a domestic partnership, individuals must fill out and file a Petition to Dissolve Domestic Partnership (PDF) with the appropriate District Court. If the couple has children, their domestic partnership may be dissolved through family court.
If you are interested in domestic partnership or other legal options for committing to your partner, consult with a Las Vegas divorce attorney for guidance.
Impact On Property And Inheritance Rights
Even if a couple has established a common law marriage in Nevada, there are no state laws that preserve their property or inheritance rights if they separate or divorce. However, a common law couple is entitled to inherit from one another to the same extent as if they were formally married. This has several different implications for couples that may not be readily apparent, as well as exceptions that should be noted.
In a typical marriage, Nevada law provides strict rules regarding the division of property if the spouses divorce. The presumption is that they own all property jointly, in which case it will be divided evenly between them (50-50). This concept is addressed in Section 125.150 of the Nevada Revised Statutes (NRS), which states: "(1) Except where an express or implied trust is established by a written instrument, any property acquired during the existence of a marriage by either or both spouses, by inheritance or otherwise, is community property."
An alternative ruling may apply if the parties can demonstrate that the property was acquired before the marriage or through a premarital agreement. If the property is ruled to be separate, then the spouse seeking a division of it must prove that he or she contributed to the accumulation of that property during the marriage. These rules do not apply to marital property purchased from separate property. In that case, the purchased property is equally divided if the separate property would have been had it remained an asset.
If divorce proceedings are required, or if a couple legally separates, the property issues become even more complicated . The general rule for property division is that it is handled at the time of the divorce, with post-separation changes in value applied equally to both parties’ assets and debts. There are some exceptions, such as where separate property is used to fund the marriage; in those cases, the divorce courts can consider the funds as a joint asset for division. Any inheritances received by either spouse during the marriage from relatives are also considered joint property.
There is a big caveat for assets owned separately before the marriage, or purchased thereafter using pre-mixed assets, where another person with whom the common law spouse was in a relationship at the time claims ownership and prevents title from passing to the common law spouse in the event of a separation or divorce.
Except for premarital agreements, property owned by either spouse before a marriage becomes community property if either spouse dies without a formal estate plan. The form of the title for separate property at the time of death is immaterial and the property passes according to NRS Section 134.040. Because spouses are presumed to have equal share in the property of their spouse who lacks a will, unless there are children from a previous relationship, nothing happens to cause a lapse of inheritance in a common law marriage.
The same presumption applies to inheritance rights if the common law spouses sign wills leaving their separate estates to the other, but the documents do not specifically state that the spouse is the beneficiary by virtue of common law marriage. Therefore, it is always wise to mention the fact directly in the will if a common law partnership existed.
Can A Common Law Marriage From Another State Be Legitimately Recognized In Nevada?
Common law marriages entered into in other states can be fully recognized as valid and enforceable marriages in the state of Nevada. Before the enactment of Assembly Bill No. 405 effective October 1, 2003, common law marriages could only be recognized after parties entered into a cohabitation agreement. Now, there are no such requirements. In order for the marriage to be recognized as valid in Nevada, it must be based on the laws where the contract to marry was entered into.
However, even when the contract to marry is valid, the courts have ruled that in order for the marriage to be recognized the parties must have held themselves out to others as spoused in papers such as deeds, accounts, or wills. See e.g., Costa v. Araujo, 83 Nev. 613 (1967).
Furthermore, the Legislative Counsel of Nevada has deemed that prior to October 1, 2003 the Recognition of Common Law Marriage provisions in Nevada "unequivocally establishes" that some form of written agreement must exist before the common law marriage will be recognized. Since contracted cohabitation agreements became unnecessary after October 2003, married couples must now look to documents like tax returns to support a claim that they held themselves out as married in Nevada.
Consult An Attorney About Relationship Protections
It is crucial to seek legal advice before you rely on a common law marriage in Nevada. For example, if you cannot obtain a marriage certificate for the full 6 months that you are living together and you did not co-mingle funds, property, and assets, you may be out of luck with proving to a Nevada Court that you are married .
If you are unsure about the representations made to you, please contact a family law attorney which I would be happy to assist you with. In order for you and your significant other to co-mingle funds, property, and assets and make a declaration to the Courts which is not absolute, there are very specific requirements.