Does Maryland Recognize Common Law Marriage?

Cohabitation Contract - Law Office of Shelly Ingram

More and more people are living together without a legal or religious marriage ceremony. At some point in time, if you have been living with a romantic partner for several years, you may wonder whether you are in a common law marriage, or may even wonder, "Does Maryland recognize common law marriage?" The answer is a little more complicated than you might expect.

States That Recognize Common Law Marriage

The short answer is that, no, Maryland does not recognize common law marriage, in the sense that you cannot create a common law marriage while living in Maryland. That said, if you have a valid common law marriage from a state that does recognize such marriages, it will be recognized in Maryland as well.

As of this writing, the jurisdictions in which you can become married by common law include:

  • Alabama
  • Colorado
  • District of Columbia
  • Georgia (if common law marriage was created before 1/1/97)
  • Idaho (if common law marriage was created before 1/1/96)
  • Iowa
  • Kansas
  • Montana
  • New Hampshire (for inheritance purposes only, also known as "common law marriage by death")
  • Ohio (if common law marriage created before 10/10/91)
  • Oklahoma (if common law marriage created before 11/1/98—possibly. Conflict between statutory law and court cases has resulted in a lack of clarity regarding whether common law marriages created after that date are recognized.)
  • Pennsylvania (if common law marriage created before 1/1/05)
  • Rhode Island
  • South Carolina
  • Texas
  • Utah (possibly; the law is unclear)

As you can see from the notations on the list, several states do not recognize new common law marriages, but do recognize those created before a certain date. Only two jurisdictions, Rhode Island and the District of Columbia, recognize common law marriage for same-sex partners. Other states, such as New Hampshire, recognize common law marriage only under limited circumstances, such as to prevent an unfair result when someone dies without an estate plan naming their long-term partner.

Do You Have a Common Law Marriage?

We've established that Maryland will recognize your common law marriage if the state in which it was created would have. Many people's next question is, "How long do we have to have lived together to be common law spouses?" Unfortunately, the answer to whether you are common law spouses is not as simple as whether you have lived together for a certain number of years.

It is a common misconception that if you have lived together for seven years, you are in a common law marriage. The reality is that there is no magic length of time. Different states have different rules, but in general, a common law marriage is created by:

  • Having lived together for a given number of years (in many states, as few as one)
  • Having presented yourselves to the community as husband and wife
  • Intending to be married

Most states that allow common law marriage allow you to file notarized affidavits to establish your common law marriage, or file some sort of registration or declaration of an informal marriage. Falsely filing such documents is a felony in some states, so this is not something to do lightly. However, after you have met the requirements of a state for common law marriage, you will be treated for legal purposes like any other married couple.

Protecting Your Rights in a Long-Term Relationship

If you live in Maryland, and your relationship does not qualify as a common law marriage, there are still steps you can take to protect your rights in your relationship. To allow your partner to inherit from you, for instance, you can create a will or trust naming them as a beneficiary. Likewise, to enable them to make medical or financial decisions for you if you are unable to, you can execute a power of attorney designed for that purpose and name them as your agent. They can, of course, do the same for you.

In Maryland, you can also create a cohabitation agreement. This is a contract, enforceable in court, that sets forth your agreement with your partner about how you are going to handle certain aspects of your relationship. Cohabitation agreements often focus on financial issues, such as management of debt or ownership of certain property, but may cover much more, down to responsibilities for chores around the house and how disagreements about interpreting the contract should be resolved. Even if you never need to have the contract enforced, the act of making it forces you and your partner to articulate your understanding of the relationship and your values, which should strengthen your relationship and prevent misunderstandings.

As with most types of contracts, you do not, strictly speaking, need an attorney to create a cohabitation agreement. That said, it is wise to at least have your agreement reviewed (if not drafted) by your own attorney, and not rely on your partner's attorney or your partner's good intentions. Consulting an attorney will help you protect your interests and ensure that you understand any obligations you are undertaking by signing the agreement.

If you are reading this blog post not because you want to create a common law marriage, but because you are unsure whether you are in one or what your rights are, consult an experienced family law attorney. An attorney can help you understand what the law is, how it applies to your particular situation, and how best to achieve your goals in light of those facts.

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Categories: Family Law