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Until I Googlized it , I was under the mistaken impression that most
states recognized Common Law Marriage, CLM, not so!
So what happens in states like New York and California when two people
, lets just keep it to a man and woman, live together for, say 15
years, without ever getting a marriage license? Have no pre-nuptial
legal contracts, but have joint ownership of property, and decide to
divorce?
This must happen, in fact there must be quite a number of people in
this category in states where there is no CLM.
It seems strange at this late date that there should be so few states
without a CLM provision, not clear why this is so. Or why it has not
changed.
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Al Jackson <aajiv@flash.net> wrote:
Until I Googlized it , I was under the mistaken impression that most
states recognized Common Law Marriage, CLM, not so!
There are very few States in which a CLM can be legally created.
So what happens in states like New York and California when two
people, lets just keep it to a man and woman, live together for,
say 15 years, without ever getting a marriage license? Have no
pre-nuptial legal contracts, but have joint ownership of property,
and decide to divorce?
This must happen, in fact there must be quite a number of people in
this category in states where there is no CLM.
It seems strange at this late date that there should be so few states
without a CLM provision, not clear why this is so. Or why it has not
changed.
There was a New York case where the Common Law wife was able to get a
divorce beacuse they held poperty in PA (a Common Law State) as husband
and wife, had registered as husband and wife in hotels (DC and Colorado
- both Common Law jurisdictions).
There was a case in Illinois where the putative wife lost.
And there was a Utah federal tax case where the IRS won because
they were able to prove there was no Common Law Marriage.
And of course the infamous Lee Marvin case where Lee won.
===
Maryland does not recognize CLM's created within Maryland,
but if you had a PA common law marriage. Maryland will
recognize it.
Dick
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Al Jackson <aajiv@flash.net> wrote:
: Until I Googlized it , I was under the mistaken impression that most
: states recognized Common Law Marriage, CLM, not so!
: So what happens in states like New York and California when two people
: , lets just keep it to a man and woman, live together for, say 15
: years, without ever getting a marriage license? Have no pre-nuptial
: legal contracts, but have joint ownership of property, and decide to
: divorce?
California doesn't *initiate* Common Law Marriages but they do
*recognize* common law marriages that are legal in other states.
How can one divorce if one is never married? Common law marriages are not
made in the state of California. They are only recognized if they previously
existed in another state where CLMs can be initiated.
b.
(not an attorney, live in California and once lived in Colorado, a Common
Law Marriage state)
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Until I Googlized it , I was under the mistaken impression that most
states recognized Common Law Marriage, CLM, not so!
So what happens in states like New York and California when two people
, lets just keep it to a man and woman, live together for, say 15
years, without ever getting a marriage license? Have no pre-nuptial
legal contracts, but have joint ownership of property, and decide to
divorce?
This must happen, in fact there must be quite a number of people in
this category in states where there is no CLM.
It seems strange at this late date that there should be so few states
without a CLM provision, not clear why this is so. Or why it has not
changed.
I'm not a CA lawyer, but my impression is the reason CA does not
recognize CL marriage is that CA is not a CL state. Its laws are
based on the Civil Code that was in effect in Mexico (the "Napoleonic
Code") before annexation to the USA, and not on prior English common
law. That's where they get the concepts of community property, etc.
that do _not_ apply in the common law states.
But modern CA courts have recognized some equitable rights of
unmarried "significant others" in "divorce"-like proceedings beginning
with the famous "palimony" case involving actor Lee Marvin and his
paramour a couple of decades ago. IIRC atty Marvin Mitchelson
represented the female partner who was granted a property settlement
and/or support payments based on her foregoing her own career in
reliance on being supported by Mr. Marvin. You could probably Google
that case and find out quite a bit about the development of this
concept in CA law.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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Al Jackson wrote:
Until I Googlized it , I was under the mistaken impression that
most states recognized Common Law Marriage, CLM, not so!
So what happens in states like New York and California when two
people , lets just keep it to a man and woman, live together for,
say 15 years, without ever getting a marriage license? Have no
pre-nuptial legal contracts, but have joint ownership of
property, and decide to divorce?
In California the court say (with respect to property) that if there
is sufficient evidence to determine the parties had at least an
implied agreement to share all their property equally, that contract
will be upheld either upon their separation or on the death of one.
Aside from that, no marital rights to unmarried couples.
I tried to get around that in one case, when I argued that since the
couple once vacationed for a week in Texas, they were married under
the common law of that state. The contention never needed to be
tested, however.
Stu
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Al Jackson wrote:
Until I Googlized it , I was under the mistaken impression that most
states recognized Common Law Marriage, CLM, not so!
So what happens in states like New York and California when two people
, lets just keep it to a man and woman, live together for, say 15
years, without ever getting a marriage license? Have no pre-nuptial
legal contracts, but have joint ownership of property, and decide to
divorce?
California, at least, has the concept of "palimony" -- pseudo-alimony
where the relationship broken is not a marriage. California also
recognizes quasi-community-property. I don't see a need for "CLM",
especially if, as I believe to be the case, there's no waiting period
or blood tests required for couples living together. If a couple
who would qualify for CLM want to become legally married, all they
would have to do is go to city hall and pay the license fee.
This must happen, in fact there must be quite a number of people in
this category in states where there is no CLM.
It seems strange at this late date that there should be so few states
without a CLM provision, not clear why this is so. Or why it has not
changed.
I thought Common Law Marriage (as opposed to private marriage) is
a modern concept. It clearly has problems, as well
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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Until I Googlized it , I was under the mistaken impression that most
states recognized Common Law Marriage, CLM, not so!
So what happens in states like New York and California when two people
, lets just keep it to a man and woman, live together for, say 15
years, without ever getting a marriage license? Have no pre-nuptial
legal contracts, but have joint ownership of property, and decide to
divorce?
This must happen, in fact there must be quite a number of people in
this category in states where there is no CLM.
It seems strange at this late date that there should be so few states
without a CLM provision, not clear why this is so. Or why it has not
changed.
Actually, the number of states recognizing common-law marriage has
*decreased* markedly over time, and some of the states that still
recognize it are now openly hostile to attempts to assert that a
common-law marriage exists.
Marriage without solemnization (such as common-law marriage, Texas
informal marriage, or Scots marriage by declaration) originated in
various times and places where formal marriage proceedings were
impractical to obtain, to protect the rights of the partners. Three
reasons for limiting or abolishing this institution are:
There really isn't any place in the US where undergoing a formally
solemnized marriage is impractical anymore.
There are other legal means of protecting the rights of partners in a
relationship that would have amounted to common-law marriage, such as
California's quasi-community property laws.
Common-law marriages are too difficult to prove when they are
legitimate and too easy to assert when they are not; thus,
countenancing common-law marriage throws both valid and bogus
relationships into dispute.
--
Not a lawyer,
Chris Green
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Dick Adams wrote:
And of course the infamous Lee Marvin case where Lee won.
Eventually. In the mean time unmarried cohabitants were given the
right to enforce express and implied agreements to equally share
property acquired by the couple.
Well, if they could convince a court that there was an agreement.
Stu
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Michael Jacobs wrote:
I'm not a CA lawyer, but my impression is the reason CA does
not recognize CL marriage is that CA is not a CL state. Its
laws are based on the Civil Code that was in effect in Mexico
(the "Napoleonic Code") before annexation to the USA, and not
on prior English common law. That's where they get the
concepts of community property, etc. that do _not_ apply in the
common law states.
Actually, aside from community property, California is a common law
state, and has been since before being admitted to the union.
But modern CA courts have recognized some equitable rights of
unmarried "significant others" in "divorce"-like proceedings
beginning with the famous "palimony" case involving actor Lee
Marvin and his paramour a couple of decades ago. IIRC atty
Marvin Mitchelson represented the female partner who was granted
a property settlement and/or support payments based on her
foregoing her own career in reliance on being supported by Mr.
Marvin.
Actually, no. The case only gave her the right to claim the rights of
an express or implied contract that the two share their property
equally. In the end she didn't carry her burden of proof.
Stu
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On Sat, 13 Nov 2004 10:27:17 -0500, mjacobslaw@comcast.net (Michael
Jacobs) wrote:
I'm not a CA lawyer, but my impression is the reason CA does not
recognize CL marriage is that CA is not a CL state. Its laws are
based on the Civil Code that was in effect in Mexico (the "Napoleonic
Code") before annexation to the USA, and not on prior English common
law. That's where they get the concepts of community property, etc.
that do _not_ apply in the common law states.
. . . .
Not necessarily true. Idaho is a community property state that
recognizes common law marriage.
Also, most western "code" states use Field-style codes, not
Napoleonic-style codes.
Daniel Reitman
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On 13/11/04 3:26 pm, in article eg9cp0t68k2gvubn7vsk3m39nhd1at50lm@4ax.com,
"Dick Adams" <rdadams@smart.net> wrote:
There was a New York case where the Common Law wife was able to get a
divorce beacuse they held poperty in PA (a Common Law State) as husband
and wife, had registered as husband and wife in hotels (DC and Colorado
- both Common Law jurisdictions).
There was a case in Illinois where the putative wife lost.
And there was a Utah federal tax case where the IRS won because
they were able to prove there was no Common Law Marriage.
And of course the infamous Lee Marvin case where Lee won.
Every state recognizes and treats as married a couple who have been
domiciled in a state that recognizes them as married UNLESS that state has a
specific rule of public policy forbidding that. We have yet to see how this
works out in respect of same-sex marriage, but we do have cases on
(1) miscegenation (which used to be illegal in many southern states),
(2) polygamy (the marriage may be recognized for specific purposes, such as
workers' compensation and wrongful death actions, child support, etc. and
not otherwise -- especially if the wives and kids are domiciled abroad, say
in Nigeria or Pakistan; also bear in mind many jurisdictions have abolished
"legitimacy" so all that matters is paternity -- at least for the kids)
(3) common law (Ehrenzweig developed the notion of a "rule of validation"
whereby a questionable marriage might be "validated" by intervening domicile
in a state that recognizes it
(4) incest and affinity (mainly cousin marriages). Most cases seem to
recognize the marriage, at least if nobody attacks it (usually that would be
the kids from a first marriage). There's a web site showing which states
recognize cousin marriages, but not making clear which ones recognize one
validly established elsewhere. Nor is it clear that the Full Faith and
Credit clause would be trumped by "public policy" which is of decreasing
importance in the US in modern decades
(5) proxy marriage (allowed in a couple of states, perhaps Florida and
Colorado; today used mainly by soldiers going to the front to get federal
benefits for their fiances)
(6) foreign marriages of odd form (consular, displaced persons camp,
military, Muslim, Hindu, African customary and generally unregistered
marriages). There have been cases on all of these, many of them English.
Mostly people are deemed married if they claim to have been, and if
documents were plausibly lost. There are some cute English cases:
Szechter, [1971] P. 286 (sham marriage to get anti-communist activists out
of Poland)
http://tinyurl.com/6rres
In re Bethell (African customary marriage)
http://tinyurl.com/3jxa6
Apt v. Apt (proxy marriage)
http://tinyurl.com/4dcx9
Native American marriages under customary Indian law were possible in some
states until fairly recently. Now Native Americans need a marriage license
like anybody else, AFAIK, although I haven't looked for exceptions.
Loving v. Virginia
http://laws.findlaw.com/us/388/1.html
and Lawrence v. Texas
http://laws.findlaw.com/us/000/02-102.html
have greatly influence the development of this law.
http://www.plannedparenthood.org/privacy/040930-loving-lawrence.asp
The IRS, etc. could win only if they can prove absence of domicile under
rule (3). Very hard to prove if the couple ever lived in a common-law state.
The issue gets muddled when there is no real domicile and no habitual
residence but only transient passage in a common-law state, holding out (as
in signing a hotel register -- but how many hotels still have registers? --
as married). If you're not there long enough to get a driver license in the
married name, to register to vote, to get credit cards, then the matter is
iffy and dependent upon the vagaries of the law. If you get all that stuff,
you are married and need a divorce to end the marriage, no matter what state
you live in.
In actual fact the IRS doesn't usually ask for proof of marriage. Cases I
have seen involved an intervening, questionable (Haitian, Mexican,
Dominican) divorce. Once the issue has been raised by somebody with an
adverse interest (dependent exemption; social security) then a demand for
documents may arise.
Marriage is an administrative act. Divorce is a legal proceeding; hence
foreign diplomats can marry in the US but can't divorce in the US.
Possessing property in a common-law state, without more, doesn't guarantee
an outcome either way, as the discussion above notes.
Googling "common law marriage" will give you a state-by-state breakdown, but
not a lot of guidance on how to trap your beloved into marriage through an
artfully designed cross-country car journey. And one can wind up with a
limping marriage, valid on one place and not another.
Williams v. North Carolina (I & II)
http://laws.findlaw.com/us/325/226.html
http://laws.findlaw.com/us/317/287.html
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Daniel R. Reitman wrote:
Also, most western "code" states use Field-style codes, not
Napoleonic-style codes.
The only Napoleonic code state I know of is Louisiana.
Stu
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On 15/11/04 11:05 pm, in article a7dip05odj4q71rgb262gf2hltujdlttgc@4ax.com,
"Daniel R. Reitman" <dreitman@spiritone.com> wrote:
Not necessarily true. Idaho is a community property state that
recognizes common law marriage.
Also, most western "code" states use Field-style codes, not
Napoleonic-style codes.
Community property is a separate issue. Property that is community property
remains so after a couple moves to a CP state. Property that is separate
property likewise remains so during residence in a CP state (or upon
marriage). The parties can alter that ("partial mutability") rule by
agreement.
Your second point is, literally speaking, incorrect since the only
(remaining?) true "code" in the USA is, arguably, the Uniform Commercial
Code. Invented long after the demise of the sainted David Dudley Field,
whose argument for a code-based legal system seems to have been put to rest
in Yi v. Yellow Cab Co., 13 Cal.3d 804, 532 P.2d 1226, 119 Cal.Rptr. 858
(1975).
And see: "Li v. Yellow Cab Co. - A Belated and Inglorious Centennial of the
California Civil Code ", 1977, Calif. L. Rev., 4, 5 : "The total oblivion of
the Civil Code's 100th anniversary reflects its actual position in
California's legal system "; Pomeroy, "The True Method of Interpreting the
Civil Code ", 3 West Coast Rep. 585 (1884), 4 West Coast Rep. 1 (1884)
(Pomeroy was Field's opponent, implacably opposed to codification).
Even New York's Civil Practice Act, one of Field's major successes, has been
re-edited and re-enacted. And is interpreted in common-law fashion.
Louisiana and Puerto Rico are trying to recover the art of codes, but so
long as their lawyers attend common-law law schools, that's a forlorn hope.
Quebec, which is largely civil-law, code-based, recognizes (as does most or
all of Canada) cohabitation to a degree unknown in the USA.
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On 13/11/04 3:26 pm, in article eg9cp0t68k2gvubn7vsk3m39nhd1at50lm@4ax.com,
"Dick Adams" <rdadams@smart.net> wrote:
Googling "common law marriage" will give you a state-by-state breakdown, but
not a lot of guidance on how to trap your beloved into marriage through an
artfully designed cross-country car journey. And one can wind up with a
limping marriage, valid on one place and not another.
Very interesting discussion. After reading all this I become less
interested in Common Law Marriage than Co-habitation.
Co-habitation must be much much more prevalent at present than in the
past. Yet, I don't know the statistics, I am willing to bet,
few people who are unmarried partners have legal papers to cover
things like property rights or custody of children.
One probably exists, but could not find a single web site that covers
the history of legal rights per state of co-habitation partners.
Found one for California, especially the Marvin case. But this issue
must be, I would guess, is common in all states now, I am not sure
how state legislatures have addressed this issue?
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In article <i7dip0901pl1vvi1oc2pvqv0m37f59mfg6@4ax.com>,
Tam <tamsuraiya@yahoo.ca> wrote:
Googling "common law marriage" will give you a state-by-state breakdown, but
not a lot of guidance on how to trap your beloved into marriage through an
artfully designed cross-country car journey. And one can wind up with a
limping marriage, valid on one place and not another.
I thought that's the sort of thing the "Full Faith and Credit" rules
was designed to avoid.
Seth
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Seth Breidbart wrote:
Tam <tamsuraiya@yahoo.ca> wrote:
I thought that's the sort of thing the "Full Faith and Credit" rules
was designed to avoid.
Doesn't always. In William v. North Carolina, two people (who were
married and living in NC) left their spouses, moved to Nevada, got
divorces from their current spouses and married each other. Several
years later they moved back to NC, which charged them criminally with
adultery. This case went to the US Supreme Court three times, if I
recall correctly.
In the end it was decided that the Nevada divorce, while certainly
recognized in that state, was not entitled to full faith and credit
because the NC spouses were not given due process.
One problem with common law marriage is that it really isn't, from a
practical standpoint, a fact until some court says it is. The only
time someone would go into court for that purpose would be when one
spouse dies or wants a divorce (and the resulting financial benefits
flowing therefrom).
Stu
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