If you are divorcing in Michigan, legally separating, or annulling a marriage, you’ll need to be advised and represented by a metro Detroit family law attorney. But what if your marriage is a “common law” marriage?
What constitutes a common law marriage? Are common law marriages recognized in Michigan? What are your legal rights in Michigan if your own marriage is a common law marriage?
Keep reading this brief discussion of common law marriage, and those questions will be answered, but if you are personally involved in a dispute regarding any matter of family law – a divorce or a custody dispute, for instance – contact a Michigan family law attorney at once.
What is a Common Law Marriage?
There is a widespread misconception that couples are married under common law if they live together for a period of time – seven years, for example. However, this is not true in any of the fifty states.
According to Wikipedia, a common law marriage “is a legal framework where a couple may be considered married without having formally registered their relation as a civil or religious marriage.”
In the states where common law marriages are recognized, a common law marriage occurs when two people live together as a married couple and present themselves to others and to the world as a married couple.
Where Are Common Law Marriages Recognized?
As of 2022, only seven states and the District of Columbia permit common law marriages. In the states where they are recognized, common law marriages are legal marriages honored by legal authorities, unlike most cohabitation arrangements. Common law marriages are recognized in:
- Rhode Island
A common law marriage is not a domestic partnership, a conjugal union, a civil union, or a cohabitation arrangement. In jurisdictions where they are recognized, common law marriages are marriages.
How Did Common Law Marriages Develop – and Decline?
In ancient societies such as Greece and Rome, the government had little interest in marriage. Marriage licenses were not issued and records were not officially kept. In 1215, the Catholic Church banned secret marriages and required all marriages to be announced publicly.
Since then, common law marriage has been slowly disappearing. Thirteen states in the U.S. have never recognized common law marriage, and twenty-eight states that originally allowed common law marriage do not now recognize it.
Massachusetts stopped recognizing common law marriages in 1646. Michigan stopped recognizing common law marriages in 1957. However, if you establish a common law marriage in one of the states that recognize it, that marriage will be honored by law in all fifty states.
Common Law Marriages From Other States in Michigan
When a couple has established a common law marriage in another state and the couple moves to Michigan, under Michigan law they are legally married, and they have the same responsibilities and rights as other married couples, but such couples must also take two more steps in Michigan:
- They must prepare a durable power of attorney that authorizes each spouse to act on behalf of the other in legal matters should one spouse pass away or become incapacitated.
- They must prepare a medical power of attorney that authorizes each spouse to make medical decisions for the other.
When spouses who have established a common law marriage in another state prepare and sign these two legal documents, the State of Michigan will recognize them as a legally married couple.
Is a Common Law Marriage a Marriage for Tax Purposes or Employment Benefits?
Common law marriages are considered legal marriages for federal income tax purposes if they are recognized by the state where the couple resides. If they move to a state like Michigan which doesn’t recognize common law marriage, they are still legally married for federal tax purposes.
In 2015, the U.S. Department of Labor extended leave rights under the Family and Medical Leave Act of 1993 (FMLA) to include eligible employees in common law marriages in the states that recognize those marriages, without regard to where the employee currently lives or works.
Do Divorce Laws Apply to Common Law Marriages?
A common law marriage is simply a different way to contract a legal marriage. There are no “common law divorces” because the divorce process is created by statutory law rather than common law.
Where common-law marriages are recognized as legal marriages, a divorce must be legal and formal in order to protect the interests of both divorcing spouses. Marital property is divided in the same way whether you were married formally or married under common law.
If you and your spouse formed a common law marriage, you must file for divorce if you no longer wish to be married. If you formed that marriage in another state and moved to Michigan, ask a Michigan family law attorney to advise and represent you in the divorce process.
Can You Prove That You’re Married?
You cannot get divorced if you can’t prove that you’re married, and without a marriage license or certificate, that can be difficult to prove.
If you are considering a divorce, make and store copies of the following documents that may help to prove you are married under common law:
- bank statements indicating joint ownership of one or more accounts
- birth certificates that name both spouses as parents
- deeds to jointly-owned real estate, motor vehicles, and other property
- insurance policies that name your spouse as the beneficiary
- mortgages, loan documents, and other documents indicating shared financial obligations
What Else is Required to Divorce in Michigan?
Whether your own marriage is a formal or a common law marriage, if you are divorcing or anticipating a divorce in or near the Detroit area, you should schedule a consultation as soon as possible to discuss divorce – and your rights – with a metro Detroit family law attorney.
You do not need to prove “fault” to divorce in Michigan. To file for a divorce in this state, at least one spouse must have lived in Michigan for 180 days before filing, and at least one spouse must live in the county where you file for the divorce for at least ten days prior to filing.
If your marriage is a common law marriage and you are divorcing, a Michigan divorce attorney will help you gather the evidence that proves you’re married. Your attorney will protect your best long-term interests and ensure that you are treated fairly throughout the divorce process.