5 Misconceptions About Common-Law Marriage

Posted on September 07, 2013 02:10pm
common law marriageJohnny Depp and Vanessa Paradis did it. Maybe. So did Susan Sarandon and Tim Robbins. Probably. Goldie Hawn and Kurt Russell are still doing it. What is it these famous couples have been doing? They all have waded into the murky waters that constitute common-law marriage.

Many of us have heard the term "common-law marriage," and have some notion that living with a partner for some magic number of years creates a common-law marriage by default. More often than not, this is not the case. And the law around common-law marriage is not consistent from state to state.

The following sets straight five fundamental misconceptions about common-law marriage in Washington State.

1. My partner and I have been together for ten years, so we're automatically in a common-law marriage.

Not true. Being married for 10 years does not grant you a common law marriage in Washington. Washington State law does not allow for common law marriage. In order to seek the rights and benefits of a married couple, partners must enter into a legal marriage that is recognized in by the State. Washington State will, however, recognize common-law marriages created in other states. (Find out which states allow common law marriages.)

2. Because my partner and I never married, I have no legal recourse now that we're splitting up.

Not entirely true. Although Washington State does not allow for common-law marriages, it does recognize that some long-term committed relationships are deserving of a limited number of the same rights allotted to those who marry. The doctrine of committed intimate relationships recognizes the importance of long-term, committed, intimate relationships sustained between two unmarried people.

There is no strict definition of what constitutes a committed intimate relationship. Instead, the court looks a number of factors in determining the existence of a committed intimate relationship. The more marriage-like the relationship, the more likely a court is to consider it a committed intimate relationship.

3. My partner says that I have no legal rights to our children now that our relationship is over.

Not entirely true. Your parental rights and responsibilities depend upon your status as a parent, not upon the status of your relationship. If you are the biological or adoptive parent, you have the same legal rights to your children as their other parent in Washington State. If you are not the biological or adoptive parent, you may still have parental rights under the de facto parent doctrine. To be a parent under the de facto parent doctrine, you must demonstrate that you meet certain factors. If you can do so, then you will have the same rights as a biological or adoptive parent.

If you don’t qualify for any of the above and the legal parent is open to your involvement, you may be able to negotiate time with the child. If you are none of the above and the legal parent objects to your involvement, you may have a difficult time establishing your rights. You must show that the biological or adoptive parent is unfit or that the biological or adoptive parents' custody would be detrimental to the child.

4. When my partner and I split up, our property and debts will be divided fifty-fifty.

Not true. Because Washington State law does not allow for common-law marriage, courts will only divide property and debts if you demonstrate that you were in a committed intimate relationship. Once you demonstrate the existence of such a relationship, courts will then apply a " fair and equitable" standard in dividing the property and debts.

In determining what is fair and equitable, courts will look at the specifics of your case and consider the following factors:

  • The nature and extent of the property
  • The length of your intimate committed relationship
  • The economic situations of each party

And even then, courts will not divide all property and debts. The fair and equitable standard applies only to property and debts acquired during the relationship. Separate property (whether belonging to one partner before the relationship or obtained by one partner during the relationship as a gift or inheritance) is not divided by the court.

If you cannot demonstrate that you were in a committed intimate relationship, then courts usually divide the property and debts according to whose name is on the property.

5. Even though my partner died without a will, because we have been together for so long, I will automatically inherit.

Not entirely true. Without common-law marriage, an unmarried partner does not inherit the same way a surviving spouse does. If your partner dies without a will, you may be able to inherit if you can show you were in a committed intimate relationship. However, your rights under a committed intimate relationship remain limited. You will not be eligible to collect social security benefits. And unless you and your partner executed wills with health-care directives, guardianship decisions, and burial instructions, you will likely have no legal right to involvement in these decisions.

If you and your partner choose to remain unmarried or not to register as domestic partners but want to be involved in these decisions, then it is advisable to consult with an attorney who can help you with your estate planning.

In summary, Washington State does not allow for common-law marriages. This does not necessarily mean, however, that you have no legal rights when your relationship ends. Consult a family law attorney who can advise you as to your legal rights and obligations and help you to navigate these murky waters.

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