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San Diego Common Law Marriage Attorney - Common Law Marriage Lawyer | San Diego Family Law Attorney

When we think of marriage, the first picture that mostly comes to our minds is that of a white dress, beautiful flowers, suits, and a wedding ceremony with couples walking down the aisle to recite their vows before a congregation, and then finishing it off by signing a marriage certificate. On the contrary, some states in the U.S. recognize a union between two people whose idea of marriage involves living together and holding themselves out as a married couple, without going through any procedure. This type of marriage is referred to as common law marriage and while some states treat such marriages as legally accepted unions even if no marriage license was issued, California is not one of them.

Common law marriage in California was abolished in 1895. Now, marriages in this state are guided by statutory regulations as provided under Family Code Section 300. Under this statute, marriage is defined as a civil contract between two persons in a personal relationship. As such, it is necessary for both parties to give their consent to make the relationship contractual. Marriage does not become legal because consent was given. In any case, solemnization and issuance of a license must follow.

Free consent of both parties, being of legal age, parental consent to the marriage and the lack of any disability that would inhibit either party from entering into a valid marriage are the main requirements for entering into both statutory and common law marriages. The two forms of marriage differ on the issuance of a marriage license or certificate. In common law marriage, the issue of having a valid license does not exist. In addition, there is no formal ceremony and the involved parties have to carry out themselves as husband and wife. Also, the parties have to be cohabitating by the time of formation of the common law marriage, which is not the case in statutory marriage.

Most couples in the common law marriage are of the assumption that they are automatically eligible to make important financial or medical decisions for the partner or make a claim to the partner’s assets upon their demise. However, this is not the case in California as there is no recognition of the common law marriage. Therefore, if you are experiencing a problem and you need help, it is important to consider the need to have a will and the power of attorney forms filled out by a San Diego family law attorney.

Common Law Marriage Exception in California

California law validates any marriage that occurred and is considered valid in another state or country. For instance, if a couple who moved to California were married in a state or territory that recognizes common law marriage, then their marriage is considered to be valid. In this case, California legally recognizes a type of union that was formed in another place but cannot be established in California.

States That Recognize Common Law Marriage in the US

At the time of this article, states that recognize the validity of common law marriage include Colorado, Iowa, Kansas, District of Columbia, Oklahoma, Rhode Island, Montana, New Hampshire, Texas, Utah, and South Carolina.

However, each of these states has its own set of requirements before a common law marriage is considered legal. This, for instance, may include matters like the minimum age limit for the parties involved in the common law marriage, the minimum period of cohabitation, etc. Acceptance of this type of marriage is not always guaranteed. A couple can experience complex issues if one party considers the union as marriage and the other does not. Some of these issues would be brought about by various factors, most of which are of selfish nature. For instance, this would be brought by a situation where the couple is splitting up and one of the parties intends to get alimony from the other. In this case, the party seeking spousal support will consider their arrangement to be a legal marriage. On the other hand, it is highly likely that the party who would be paying alimony would argue that they were not in a legal marriage so as to avoid being sanctioned to be paying support. In such a scenario, it will be upon the court to figure out if common law marriage is legal in the state or country that the couple relocated from. If found to be the case, the decision of the court will be based on the laws of that state or country.

Palimony Claims in California

In California, rights and obligations available to married couples will not be applicable when it comes to unmarried partners. However, unmarried couples who have stayed together for a considerable time can make “palimony” or “Marvin” claims for property and financial support when they break up. Basically, for you to win a palimony claim, they must produce evidence showing an agreement between you and your partner or an implied understanding that a spouse will support the other financially or share the property in case of a split. The most common ways to prove these claims are:

1. Written Contract

If a couple created a valid, written contract that states how a property will be shared or who will provide support in case of a split, the agreement should control the outcome of the case in a common law marriage setting. The couple should then work together to figure out the amounts for property and specific items to be shared, in addition to deciding on spousal support. If you and your partner cannot agree on the numbers, it would be imperative to hire an experienced family law attorney who has successfully helped other individuals with similar cases. A San Diego Family Law Attorney can review your agreement to find out if it has any legal loopholes and advise you on the steps to take.

2. Implied Contract

It is much harder to prove an implied agreement as compared to a written one. The only way an implied agreement can be evaluated is by looking at the parties’ conduct. This may involve considering whether on party supported the other throughout their relationship, whether he or she promised that the kind of support received would continue even after a split or death, or the parties’ behavior proved that they had an agreement to divide their property and earnings equally. In coming up with such findings, the court will look at evidence like:

  • Reasons why the couple opted not to marry- were they doing this to avoid community property rights?
  • The couples’ banking tendency which is determined by whether they have joint or separate savings
  • Whether they both contributed toward the purchase of property, and whether the title of the property is separate or combined

Courts also consider if the couple had a stable marriage-like relationship, their behavior towards each other as companions, and whether they were living together. Also may make a ruling based on California Family Code Section 2251. Under this statute, a marriage can be considered valid if one of the parties (referred to as the putative spouse) believed in good faith that the marriage was legally accepted. In the event of a split, the putative spouse will be entitled to spousal support and a share of the property acquired during the invalid marriage.

One way to avoid a palimony claim is by creating a Living Together Agreement whose content and role is similar to what a prenuptial agreement delivers. This will give direction on what happens to the property that the couple will acquire during their time together and will also determine whether one of the partners can seek for financial support from the other partner when they break up.

Unmarried Parents and Payment of Child Support in California

In California, parents have the legal obligation to provide financial support to their children, irrespective of their marital status. This is because the child has the right to child support and not the parents. Child support issues can be handled in court when a parent or the state files a motion for child support or parentage action. A child support case in California can also be opened by The California Department of Child Support Services on behalf of the child, and perform a wide range of services, including:

  • Searching a child’s parents
  • Creating, modifying, and ensuring conformity with child support court orders
  • Establishing paternity
  • Establishing, modifying, and enforcing orders for the child’s health coverage

In California, child support is calculated using the state’s set procedures. These are basically calculations done based on the amount of time that each parent spends with the child and both parents’ income.

Unmarried Parents and Child Custody Rights in California

Just like married parents, unmarried parents have equal rights and obligations when it comes to the issue of child custody, so long as the issue of paternity is settled. Child custody is determined based on what the court will consider to be in the best interests of the child.

Benefits of Legal Recognition of a Marriage

There are many reasons that make couples in California decide on getting married in a legal manner. And for whatever reason, they get to enjoy a number of benefits. Some of the advantages of getting into a union that is recognized by the state include:

  • Preferential tax treatment
  • Alimony
  • Clear rules that govern property division and distribution
  • Estate planning and probate benefits

Alternatives to common law marriages

If a couple prefers a traditional kind of marriage but want to obtain the benefits and rights that come with a state-recognized union, then they can go for other alternatives instead of settling for common law marriage. Some of the alternatives are:

  • Domestic partnership: This is legal in the state of California. It legalizes a union of two partners and offers rights that are generally reserved married couples. This is especially a great alternative to same-sex partners who would like to legalize their union.
  • Living Together Agreement or Cohabitation Agreement: This is an alternative for couples who don’t wish for their union to be legally recognized or formalized. The state of California allows for the execution of a Cohabitation Agreement or Living Together Agreement. This agreement is similar to a prenuptial agreement. It is legally binding and gives direction on the allocation of property in the event of a split or death of one spouse. This agreement recognizes a living spouse as a beneficiary of the property left behind after a party’s demise. This unlike the common law marriage where a surviving spouse will not be considered a beneficiary unless there are legal forms or contracts indicating so.

Cohabitating couples lack a legal ground for claiming that their union is legal and should at least consider a living together agreement to avoid battles involving palimony claims. Conflicts and disagreements can be time-consuming and costly in terms of legal fees for court cases before a decision is made. The agreement coerces the parties involved to honor the contents of the agreement. If one person fails to adhere to set the conditions, then a legal lawsuit can be filed to enforce the agreement.

Consulting an San Diego Family Law Lawyer

If you entered into a common law marriage in another state that recognizes that kind of union, and then you moved to California, it would be imperative to work with a California family law attorney. The issue of common law marriage in the Golden State is not as easy as one would expect. If a couple decides that a separation would promote their best interests, the issue of who is responsible for debt and who is entitled to property can arise, irrespective of whether they were united under a legally recognized marriage or common law marriage.

When such matters arise, it is advisable that the partners consult with a family attorney to help them understand their options and also find common ground. This can help avoid frustrations caused in terms of financial strain and hardline positions from each spouse. If you are currently in a common law marriage and you are already facing legal problems, San Diego Family Law Attorney can help. This is not a cut and dried issue and deciding to handle it on your own could result in your claims being denied.

If you need legal advice or help in preparing an effective and comprehensive cohabitation agreement and the necessary estate planning documents to protect you and your spouse in case of a split or death, our attorneys have extensive experience in this area and can help. Contact us today at 619-610-7425 for a free, no-obligation consultation. 


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