Massachusetts Common Law Marriage: Meaning and Overview
Although many people may have heard of common law marriage, few are familiar with it in detail or understand its effects. In fact, many people are under the impression that common law marriage is somehow tied to immoral or illegal behavior. The truth is quite the opposite, and the honesty underlying factual marital relationships is the point behind common law marriage, as may be seen from its historical development. In fact, the term "common law marriage" derives from the Medieval Ages in England when no civil formalities were required to establish the legal status of a marital relationship. Couples who lived together and who intended to form a permanent marital relationship—as opposed to a purely social situation or unlawful cohabitation—were considered married because they had, in effect, created a "general" (or common) law of marriage within their community. Because the purposes and qualities of common law marriage have not changed, a common law marriage today continues to involve a mutual agreement. From an objective standpoint, the couple must cohabit and hold themselves out to the world as a married couple (e.g., by using the same last name and sharing living expenses) . Subjective to these objective criteria, the parties must intend to form a marital relationship, and a community must exist in which they present themselves as a married couple. By looking to see if the parties actually perceive themselves as a married couple, a court can identify whether there has been a marriage under the traditional common law rules. Alternatively, some states look only to the conduct of the parties and not at their subjective perceptions. To enforce a common law marriage, a court generally evaluates the parties’ conduct based on applicable state laws. For example, some states draw a distinction between express and implied contracts in law, whereas others do not. In some states, a single fact may be enough to validate a marriage, whereas in others, a combination of facts may be required. Common law marriage was once accepted in all fifty states, but that is no longer the case. Common law marriage is frequent in the Mountain and Plains States, parts of Indiana, Pennsylvania, Georgia, South Carolina, and Texas and is not recognized by the Federal government. Currently, Massachusetts does not recognize common law marriages, and although past instances of common law marriage are recognized by Massachusetts law, the Department of Revenue has openly voiced its disapproval of the doctrine.
Common Law Marriage in Massachusetts: Is It Recognized?
Massachusetts does not recognize common law marriages. Massachusetts General Laws Chapter 207, Section 1 states that no person shall enter into a marriage ceremony with another person during the existence of a marriage with another unless the first or the second marriage lawfully terminated by death, divorce or annulment. The Massachusetts statutes make it clear that in order to enter into a valid marriage, the parties must be free to marry – in other words, terminating the first marriage is a requirement.
Massachusetts Couples: Implications of Common Law Marriage
Because Massachusetts does not recognize common law marriage, unmarried Massachusetts cohabitating couples should carefully consider their circumstances and their legal options. As set forth above, Massachusetts does not allow unmarried cohabitating couples to file a joint income tax return. However, the Massachusetts Division of Unemployment Assistance Regulations allow one spouse to collect unemployment benefits based on a laid off spouse’s earnings. As set forth above, Massachusetts law will not equitably divide marital assets pursuant to G.L.c. 208, §34 and will not award alimony under G.L. c.208, §48 without a valid marriage. As set forth above, Massachusetts law will not give divorcing partner’s status as "former spouse" pursuant to G.L.c. 208, §34A. However, unmarried cohabitating couples may seek either a declaration of domestic partnership or a declaration of domestic partnership with a domestic partnership agreement. The Massachusetts Domestic Partnership Registration Act does not impose any legal obligations on partners and does not govern property division. Therefore, although unmarried cohabitating couples may obtain tax benefits, social security benefits, health insurance benefits and ERISA-related benefits as "spouses" of a domestic partner, unmarried cohabitating couples should consult with an attorney about the validity of the domestic partnership agreement they are entering and whether the agreement will adequately protect their rights should they separate.
Common Law Marriage from Another State in Massachusetts
As we have just mentioned, if you were not married through official channels here in Massachusetts, you may be considered to be "common law" married in other jurisdictions. While the State of Massachusetts does not recognize common law marriage in-state, it will recognize a common law marriage that was validly entered into in another state. In other words, if you walked down the aisle in Maryland and the laws of that state allowed you to be "common law" wed, Massachusetts will respect your out-of-state marriage.
It is important to note that very few states still recognize common law marriages today. Currently, only the following states recognize common law marriages created after 1988: Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas and Utah. That said, the most recent find on the law for Massachusetts finds that we will permit out-of-state common law marriages even if our state does not recognize their validity, but we will not announce that effectively they have the same power as a divorce judgment that we DO recognize. In a future note we will get into how complicated it can be to untangle an out of state common law marriage, and thus this still adds to your complexity in requesting a divorce from a Massachusetts Court.
Common Law Marriage Alternatives in Massachusetts
In Massachusetts, there are no alternative legal unions recognized other than marriage to grant rights otherwise available to married parties. Massachusetts does not offer common law marriage, domestic partnerships or civil unions . In Massachusetts, the law does not recognize anything besides a marriage between a man and a woman or between a same sex couple as a valid union that grants legal rights that only married couples enjoy. In Massachusetts, if you want the rights of a married person under the law, you must get married.
Protecting Yourself Legally Without Common Law Marriage
It’s important for unmarried couples in Massachusetts to ensure legal protections, as the common law marriage is not recognized. One way to do this is to draft a cohabitation agreement. Cohabitation agreements are usually prepared by attorney with family law experience to ensure they protect and inform parties about their rights and obligations in the event of death or separation. Cohabitation agreements define the parties’ property rights, support obligations and certain other matters that would otherwise be addressed in a divorce proceeding.
Cohabitation agreements are an especially powerful tool because it is up to the parties to define how they will manage their affairs without the intervention of the court. The agreement is then enforceable in a court of law in the event of a dispute between the parties.
In addition, unmarried couples should also have estate planning documents that specify how assets should be distributed in the event of the death of one of the parties. Dying without a will in Massachusetts means that your spouse could receive the entirety of your estate if your children are adults. Dying without a spouse means that your children could inherit the majority or entirety of your estate if you have no will.
For these reasons, it is vital that unmarried couples speak with their attorneys about preparing cohabitation agreements and signing wills to avoid hardship when death or separation occur.
Conclusion: Relationship Laws in Massachusetts
Navigating the various relationship laws within Massachusetts can be tricky, and being well-informed is key to making the right choices. The state does not recognize common law marriages—unless they were entered into prior to 1958 when the law changed—therefore couples who live together without a marriage certificate do not have any of the legal rights that married couples do. You may not have known this when you first began your relationship, and perhaps you never bothered with the certificate since you ended up in a committed partnership anyway, but the fact of the matter is that you have no protections if your relationship ends. The lack of these protections can leave you vulnerable financially and can make it difficult to divvy up tangible assets such as property or money, especially if children are involved.
If you are currently living as a couple and you want to establish your rights as such under Massachusetts law , there are some steps you can take to protect yourself. The best option for couples who have shared assets is to enter into a written agreement before separating that defines how all property will be divided up. It is also wise to discuss the issue of custody of children, should you have them, as well as financial support and any other issues you may have struggled with over the course of your relationship. While you do not need to formalize your relationship in the eyes of the courts, noting these things down in writing can save you an undoubtedly great deal of time and trouble.
There are several online services where you can find templates for agreements of many kinds, or you can have a lawyer create a custom agreement for you that includes all the possible clauses needed for your situation. The latter option is preferable because it allows for any issues that may be specific to your situation or that another couple might not think of, ensuring that you have your bases covered. Having an attorney is also key if you do end up going to court over any aspects of the agreement.