In Minnesota, common law marriage doesn’t exist. It was abolished in 1941. No matter how long you live with someone in this state or how often you tell people you're married, a common law marriage cannot be established in Minnesota.
However, if a couple was married by a valid common law in one of the states that do still recognize common law marriage, and that couple relocates to Minnesota, the courts in Minnesota will recognize their common law marriage.
What is common law marriage?
A couple is considered to be in a “common law marriage” even if they haven’t met the formal requirements for marriage (i.e., a wedding ceremony, being granted a marriage license, or submitting a marriage certificate).
Generally, to be in a common law marriage, a couple must live together for a set number of years with the intention of being a married couple and “hold themselves forth” as married to others — meaning they inform people they’re married.
In states that recognize common-law marriage, the parties in a common law marriage have the full rights of spouses in a legal marriage. Most notably, this would mean that they would be entitled to an equitable share of the couple’s marital property, should they divorce.
What is a putative spouse?
Putative spouses appear to be a person's legally recognized spouse but are not because of a procedural error, such as failing to get a marriage license.
Take for example a person who has lived with another, believing in good faith that they are married. In that case, they would be deemed to be a putative spouse under Minnesota law and would be granted all the same rights as a legal spouse, including the right to ask for spousal support from the other party.
According to the law, the putative spouse status lasts until it is discovered that the individual is not legally married, at which point the status is terminated and additional rights cannot be acquired.
Does Minnesota have cohabitation laws?
There are laws that affect a couple after they get married, as well as laws that apply if that couple should choose to divorce. Minnesota law stipulates, for example, that property owned by married couples must be equitably divided upon divorce. These laws, however, don't apply when a couple cohabitates without getting married.
A cohabitation agreement will outline what will happen to your joint possessions if you and your partner separate, or if one of you passes away. This agreement must be in writing, as a verbal agreement can be difficult to prove in court.
What are the rights of an unmarried couple upon separation?
Couples who cohabitate or have children together without being legally married risk unforeseen consequences if the relationship ends. Unless you create a properly executed cohabitation agreement, you have no rights to the assets or earnings of the person you're cohabitating with, regardless of how long you've been together.
Even having children with another person does not award you any additional rights or entitlements to the other person’s property or earnings other than child support-related issues.
What happens to the property of an unmarried couple upon separation?
Without a written agreement, your joint possessions will likely be distributed according to who paid for what. This can become an issue if, for example, only one partner’s name is listed on the title of your house. Even if you both contribute to the mortgage payments or you have invested money in renovations that have increased the value of the home, if your name is not on the title, you are not entitled to any value from that asset if you are not legally married.
If the couple jointly owns an asset, however, they each have legal claims to the property that may be enforced in a civil court proceeding. Additionally, if the couple has children together, they also have the right to use the family court system to request child support and custody.
What is the legal definition of a “significant other”?
In general, a significant other is someone who is in a relationship with another person. Typically, both parties are unmarried and intend to remain in the relationship indefinitely. There may be shared financial obligations, as well as a shared primary residence.
However, in Minnesota, a significant other has no rights to the property or assets of their partner if they are not legally married.
Do I have child custody rights if we’re an unmarried couple?
The court can and will decide on child custody and child support even for unmarried parents. Whether the pair has ever been married will have no bearing on how a court resolves these two concerns.
However, in Minnesota, couples should know that if they are not married when the child is born, there is no legal father until paternity is established. By completing a Recognition of Parentage (ROP) form, the parents can acknowledge that a man is their child's biological father, or they can take court action to have the father named (adjudicate paternity). Paternity cannot be proven by a birth certificate alone.
Generally, to request custody or parenting time from the court, you must be a legal parent. This means that until paternity is confirmed, an unmarried father has no legal claim to custody or parenting time. Until a court orders otherwise, an unmarried mother has exclusive legal and sole physical custody of her child.
To protect your rights, as soon as possible after the birth of your child, you and your partner should sign a Recognition of Parentage form and establish a defined custody arrangement. While this may seem unnecessary if you and your partner are in a committed relationship, think of it as an insurance policy set in place to protect your child. Having joint legal custody secures the rights of both parents.
What states still recognize common law marriage in 2022?
There are only a handful of states that still recognize common law marriage in 2022. They are listed below:
- Colorado: Common law marriage contracted on or after Sept. 1, 2006, is valid if, at the time the marriage was entered into, both parties are 18 years or older, and the marriage is not prohibited by other law. (Colo. Stat. §14-2-109.5)
- District of Columbia: To establish a common law marriage the following requirements must be met by two legally capable individuals: a mutual agreement, in the present tense, to enter into a state of matrimony; and the consummation of their agreement by cohabitating as husband and wife. (United States Fidelity & Guaranty Co. v. Britton, 269 F.2d 249, 251 (1959))
- Iowa: Common law marriage is allowed for purposes of the Support of Dependents Chapter (Iowa Code §252A.3) Otherwise it is not explicitly prohibited. (Iowa Code §595.1A)
- Kansas: Common law marriage will be recognized if the parties are 18 or older and for purposes of the Divorce and Maintenance Article, proof of common law marriage is allowed as evidence of the marriage of the parties. (Kan. Stat. §23-2502; Kan. Stat. §23-2714)
- Montana: Not strictly prohibited, and they are not invalidated by the Marriage Chapter. (Mont. Stat. §40-1-403)
- Rhode Island: According to the appellate courts in Rhode Island, you only have a legally binding common law marriage if you can prove: Both spouses share a serious intent to enter into a spousal relationship, and both spouses must live together for a substantial amount of time, Both spouses behave in such a way as to lead to a belief in the community that they are married. (Holgate v. United Electric Rys. Co., 47 R.I. 337 (1926))
- Texas: Common law marriage is recognized under specific circumstances. (Tex. Family Law §1.101; Tex. Family Law §2.401-2.402)
- Oklahoma: In Oklahoma, common law marriages are generally recognized, however, it’s a bit more complicated, as the legislature has also attempted to abolish it. For more information, see here.
- Utah: Utah doesn’t recognize common law marriage. However, couples who have cohabitation and treated one other as spouses can petition the court to recognize their past relationship as a marriage. (Utah Stat. §30-1-4.5)
- South Carolina: South Carolina allows for marriages contracted without a valid license. (S.C. Stat. §20-1-360)
Common law marriage is also recognized in New Hampshire, but only when inheriting assets from a deceased partner, and only in cases where the couple cohabitated for three years prior to one of them passing away. (New Hampshire Revised Statute 457:39 (2022)) This means that until your partner passes away and you become eligible to receive any inheritance as the surviving partner, your common law marriage will not be legally recognized in New Hampshire.
Additionally, five states recognize common law marriage, but only if they were formed before a certain date:
- Florida – if formed before Jan. 1, 1968,
- Georgia – if formed before Jan. 1, 1997,
- Indiana – if formed before Jan. 1, 1958,
- Ohio – if formed before Oct. 10, 1991,
- Pennsylvania – if formed before Jan. 1, 2005.
What is a common law spouse entitled to?
If you had a valid common law marriage and then choose to separate, you will need to get divorced under the same laws that apply to ending all marriages in Minnesota. A common law spouse, then, is entitled to the same rights as any legal spouse in a divorce proceeding.
How can I protect my rights if my relationship ends, but we weren’t married?
If you’re unmarried and want to ensure your rights are protected, or if you and your partner have separated and you feel that you have not received a fair division of your assets, the attorneys at Sheridan & Dulas, P.A. can help.
You can consult with us for free, and we’ll walk you through the process of drafting a cohabitation agreement, answer any questions, and let you know what’s possible for your case. There’s no obligation to keep working with us, so what do you have to lose? Send us a message here!
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