A common law marriage is a legally valid marriage formed without a license or ceremony, and today only about nine U.S. jurisdictions let couples create one. Where it is recognized, it carries the same legal weight as a wedding at the courthouse: property rights, spousal benefits, inheritance, and joint federal tax filing all apply. But the requirements go well beyond simply living together, and most states will not let you form one at all.
Where You Can Still Form One
A small group of jurisdictions currently allows couples to enter a new common law marriage:
- Colorado, where both parties must be at least 18 and the marriage cannot violate any other law.
- Iowa, where it is not prohibited by statute and is recognized for support-of-dependents proceedings.
- Kansas, where both parties must be 18 or older.
- Montana, where it is not invalidated by the state’s marriage chapter, though not expressly codified.
- Oklahoma, where the statute calls for a license but case law has consistently upheld common law marriages.
- Rhode Island, recognized through case law rather than statute.
- Texas, which calls it “informal marriage” and requires both parties to be at least 18.
- The District of Columbia, which permits it without specific statutory restrictions.
- Utah, which requires a court or administrative order validating the marriage.
New Hampshire sits in its own category. It recognizes common law marriage only after one partner dies, and only if the couple lived together and were generally known as married for at least three years before the death.1National Conference of State Legislatures. Common Law Marriage by State
States That Honor Older Common Law Marriages
Several states abolished common law marriage but still honor unions formed before the cutoff date. If you entered one in these states before the deadline, it remains valid:
- Ohio, before October 10, 1991.2Ohio Legislative Service Commission. Ohio Revised Code 3105.12 – Common Law Marriages Prohibited
- Georgia, before January 1, 1997.
- Pennsylvania, before January 1, 2005.1National Conference of State Legislatures. Common Law Marriage by State
- Alabama, before January 1, 2017.
- South Carolina, before July 24, 2019, when the state Supreme Court held in Stone v. Thompson that no one could enter a common law marriage in South Carolina after that date.3Justia Law. Stone v Thompson – 2019 – South Carolina Supreme Court Decisions
If you believe you have a grandfathered common law marriage from one of these states, the burden of proving it existed before the cutoff falls on you.
The Seven-Year Myth
No state creates a common law marriage automatically after seven years of living together, or after any other number of years. Cohabitation alone does not make you married anywhere in the country. The myth leads people in two bad directions: couples in recognition states assume they’re married without meeting the actual requirements, and couples in non-recognition states assume they’ve gained marital rights they do not have.
What It Takes to Form One
Elements vary by state, but recognition states generally share three core requirements plus a threshold question of legal capacity.
A Present Agreement to Be Married
Both partners must agree, in the present tense, that they are married right now. Plans to marry someday do not count. The agreement does not have to be in writing. Colorado’s Supreme Court described it in 2021 as a “mutual consent or agreement of the couple to enter the legal and social institution of marriage” and “a committed, intimate relationship of mutual support and obligation.”4Justia Law. In re Marriage of Hogsett and Neale – 2021 – Colorado Supreme Court Decisions
Cohabitation
The couple must live together. Living together on its own does not create the marriage, but it is a necessary ingredient in every recognition state. Courts treat shared living arrangements as evidence that supports the broader claim of a marital relationship.
Holding Out as Married
The couple must publicly present themselves as married. Many claims collapse here. Using the same last name, introducing each other as spouses, filing joint tax returns, and listing each other as married on official forms all count. Private agreement and shared housing are not enough if no one else knows you consider yourselves married.
Legal Capacity
Both parties must be legally eligible to marry: of legal age (18 in most recognition states), not currently married to anyone else, mentally competent to consent, and not related within prohibited degrees of kinship. Texas statute explicitly bars anyone under 18 from forming an informal marriage or signing a declaration of one.5State of Texas. Texas Family Code 2.401 – Proof of Informal Marriage
Utah’s Validation Order
Utah does not recognize common law marriage the way other states do. The marriage is not automatically valid once the elements are met; instead, Utah requires a court or administrative order confirming the marriage exists. The couple must show they are of legal age, legally capable of marrying, have cohabited, mutually assumed marital rights and duties, and held themselves out with a general reputation as spouses.6Utah Legislature. Utah Code 81-2-408
The deadline is strict. A petition for recognition must be filed during the relationship or within one year after it ends. Miss that window and you lose the ability to have the marriage validated, no matter how strong your evidence.6Utah Legislature. Utah Code 81-2-408
The Texas Two-Year Trap
Texas has its own timing rule. If a couple separates and neither party files a legal proceeding to prove the marriage within two years, a rebuttable presumption arises that no agreement to marry ever existed. You can still try to overcome it with evidence, but the legal deck is now stacked against you.5State of Texas. Texas Family Code 2.401 – Proof of Informal Marriage
Texas also offers a formal alternative. Couples can sign a Declaration of Informal Marriage with the county clerk, which creates immediate and unambiguous proof. Someone already married to another person cannot sign the declaration or be party to an informal marriage.5State of Texas. Texas Family Code 2.401 – Proof of Informal Marriage
How to Prove One
Because there is no marriage certificate, proving a common law marriage usually comes down to a paper trail. The goal is to show both the agreement to be married and the public holding out through documents anyone can verify.
Affidavits and Declarations
A sworn statement confirming the marriage is often the most direct piece of evidence. Some states (Texas being the clearest example) offer a formal declaration through the county clerk. Federal agencies have their own forms, including the DS-5156 used by the State Department for federal employee benefits.7U.S. Department of State. DS-5156 – Common Law Marriage Declaration Form These affidavits generally require the date the agreement was made, the names both partners use, and confirmation of shared intent to maintain the relationship.
Financial and Public Records
Joint federal tax returns filed as married carry significant evidentiary weight because they are signed under penalty of perjury. Other useful documentation includes joint bank accounts, shared leases or mortgages, insurance policies naming one partner as a spouse, life insurance beneficiary designations, wills or powers of attorney, and shared utility bills. Together, these records show both financial integration and public holding out.
Statements from Others
Statements from family members, friends, and community members who observed the couple living as spouses strengthen a claim. The Social Security Administration specifically looks for signed statements from blood relatives of both spouses when verifying a common law marriage for benefits.8Social Security Administration. 404.726 Evidence of Common-Law Marriage
Federal Recognition
Federal recognition matters for taxes, retirement, health coverage, immigration, and veterans’ benefits. Agencies run their own verification processes but share a common principle: if the marriage is valid where it was formed, the federal government will generally honor it.
The IRS treats you as married for federal tax purposes if you entered a valid common law marriage in a recognition state, even if you later move to a state that does not allow them. Revenue Ruling 58-66 established the rule, and the IRS reaffirmed it in Revenue Ruling 2013-17. You then file as married filing jointly or married filing separately, the same as any other married couple.9Internal Revenue Service. Revenue Ruling 2013-17
The Social Security Administration recognizes common law marriages for spousal and survivor benefits. A recognized common law spouse is entitled to the same benefits as a ceremonially married spouse, including up to 50% of the working spouse’s benefit while that spouse is alive and up to 100% as a survivor benefit. The preferred evidence is signed statements from both spouses, if living, plus statements from two blood relatives. If a blood relative is not available, statements from other people with personal knowledge can substitute.8Social Security Administration. 404.726 Evidence of Common-Law Marriage
The Department of Veterans Affairs defines marriage as one valid under the law of the place where the parties lived at the time of the marriage, or when the right to benefits accrued.10eCFR. 38 CFR 3.1 – Definitions The VA also has a “deemed valid” provision that can recognize a marriage even when it does not fully meet state requirements, provided the claimant entered it in good faith, the marriage occurred at least a year before the veteran’s death, and the couple lived together continuously until death.
U.S. Citizenship and Immigration Services recognizes common law marriages for immigration purposes if the marriage is valid where it was celebrated, with the same mix of affidavits, tax returns, and shared financial documents as other agencies accept.11U.S. Citizenship and Immigration Services. Policy Manual Volume 6 Part B Chapter 6 – Spouses
If You Move to a Non-Recognition State
Under the Full Faith and Credit Clause, states generally must honor a valid marriage established in another state. Form a common law marriage in Colorado, move to California, and the marriage does not disappear at the state line. The IRS has explicitly confirmed this for federal tax purposes.9Internal Revenue Service. Revenue Ruling 2013-17 Proving the marriage in the new state can get harder once you lose the community context that supported the holding-out element, so keep strong documentation from the time you lived in the recognition state.
Ending a Common Law Marriage
There is no such thing as a common law divorce. Once a common law marriage is legally valid, ending it requires the same formal court process as any other marriage. One spouse files a petition for dissolution in family court, the other is served, and most jurisdictions impose a waiting period before the court issues a final decree.
Property and debts are divided under the same rules used for ceremonial marriages. Assets acquired during the union, including real estate and retirement accounts, are subject to equitable distribution. The court may award spousal support where financial need is shown. The final decree terminates the marriage and lets both parties remarry.
The Bigamy Risk of Skipping Dissolution
Because a common law marriage is a real marriage, marrying someone else without dissolving it first is bigamy. A valid common law marriage is sufficient grounds for prosecution in states that criminalize it. In Colorado, bigamy is a class 6 felony for the married person, and knowingly marrying someone you know is already married is a class 2 misdemeanor.
The people most at risk are the ones who assume a common law marriage “doesn’t count” or ended on its own when the couple stopped living together. It persists until a court dissolves it, no matter how long ago the separation happened. If you think you may be in an unresolved common law marriage from years back, resolve it before entering a new one.
Children of a Common Law Marriage
Children born during a valid common law marriage are treated identically to children born during a ceremonial one. The spouse who is not the biological parent benefits from the same presumption of parentage that applies in any marriage. In Colorado, a person married to the child’s mother at the time of birth is presumed the natural father, and that presumption can be overcome only by clear and convincing evidence.12Justia Law. Colorado Revised Statutes 19-4-105 – Presumption of Paternity
Custody, child support, and visitation then follow the same framework as any divorce. That is a meaningful advantage over unmarried cohabiting couples, who may need to establish parentage separately through court proceedings or genetic testing.