Prenups & Postnups in Common Law Marriages

Updated: Oct 13



What Is Common Law Marriage?


A common law marriage (also known as a non-ceremonial marriage, sui iuris marriage, informal marriage, or marriage by habit and repute) is a scenario in which a couple is considered legally married without having registered a marriage license or formalized their union with a ceremony.


It is a valid, legal marriage between two people who are living together and holding themselves out to the public as spouses. Some states that recognize common law marriages require partners to have done so for a specific number of years.


Common law marriage is only valid and legal in states that recognize them as such, and not all states do.



Which States Currently Allow Common Law Marriages?


Only a few states within the United States still allow for there to be common law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah.


Although not expressly in the state’s written laws, both Rhode Island and Oklahoma courts have upheld common law marriages.


The following states USED to allow common law marriages, no longer do, but have agreed to recognize the common law marriage if partners entered into the marriage prior to the state’s changing their rules: Pennsylvania, Ohio, Indiana, Georgia, Florida, and Alabama.


The remainder of the states do not follow common law marriages. Based on trends, it looks like abolishing common law marriage is on the move.


What Happens If I Move from A State that Recognizes It To a State That Doesn’t?


This varies in every state, so it’s important to consult your own attorney, but generally speaking, out of fairness, courts will recognize another state’s laws.


So, for example, if you and your partner moved from a state that allowed common law marriages to a state that did not allow common law marriages, like California, there’s no need to sweat it – California will recognize the marriage as valid, if it were valid in another state.


How Does It Affect Getting a Prenup or Postnup?


This is a great question and truthfully not an area of law that is oftentimes challenged in court, because it rarely comes up.


The answer is: it depends.


This is why it’s important to have an attorney who is experienced in drafting prenuptial and postnuptial agreements.


If you’re currently in a common law marriage and you’re moving to a state that doesn’t allow common law marriages, but at least recognizes common law marriages, then you can move forward with a postnuptial agreement, because if the law recognizes the common law marriage, it is still a legally, valid marriage. Otherwise, a prenup would be needed.


Deveney’s Final Thoughts


My thoughts regarding this issue are simple: it really doesn’t matter.


Creating a prenup or a postnups is meant to allow two partners to dictate the terms of their assets, debts, and finances, as opposed to allowing a state government to do so. You’ll be creating a document, together, to do just that.


If the partners move to a state that does not allow common law marriage, and simply don’t want to risk anything, get married again.


Sign the marriage certificate, go down to the court, boom, bam, done. Risk averted.