Just because two people - a man and a woman - set up a household and live together, doesn't necessarily mean that the couple is married under common law. Not every state recognizes common law marriage, and there are steps that need to be taken for the couple to be considered in a common law married arrangement.
What is Considered Valid, Common Law Marriage
Validity depends on the state in which you live. Very few states recognize common law. Some states, such as Ohio, don't recognize common law unless the couple got together before 1991. Other states have similar cut-offs. So it is very important to find out if your state legally recognizes the relationship.
Requirements for Common Law
There are four basic requirements for entering into a common law relationship:
- You must live together.
- You must present as a married couple. Refer to each other as husband and wife, file a joint tax return, or use the same last name.
- You must have been together for a very long time...years, in fact. This rule and the amount of time varies by state.
- You must intend to eventually get married.
The current fight over whether to grant same-sex couples the right to marry has also wreaked havoc with common law marriage statutes. Some states which jumped to outlaw recognition of same-sex marriages performed in other states, also seemingly outlawed common law marriages between men and women. That is why it's so important to check the law in the state where you live.
The Federal Government
The federal government will only recognize common law marriage if the couple's state recognizes common law. In order to qualify for survivor benefits, paperwork must be done and witnesses must testify in order to get the government to recognize the relationship.
Federal Income Tax
Now, as far as the IRS is concerned you're considered married and can file jointly if you meet a couple of stipulations: you are living in a common law marriage recognized by the state where you live, or you are living in a state that recognizes common law marriage when the common law marriage began. Both stipulations must have been in force for at least the entire year prior to the filing of your joint return.